Keogh v CPB Contractors Pty Ltd & Ors - [2021] WADC 42 - WADC 2024 case summary — Zoe

WAWADC

Keogh v CPB Contractors Pty Ltd & Ors

[2021] WADC 42

District Court of WA|2024-04-19

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Source facts

Court

District Court of WA

Decision date

2024-04-19

Source

Original judgment source is linked above.

Judgment (128 paragraphs)

[1]

Introduction

Mr Craig Keogh is a 52-year-old man who sues by an Amended Statement of Claim filed on 27 March 2024 (ASOC) seeking damages for injuries said to be attributable to exposure to dust while working in coal mines in Queensland and New South Wales. Mr S Tzouganatos with Ms V Boutas appeared for the plaintiff, instructed by Shine Lawyers.
Mr Keogh alleges that he suffers from the following diseases and conditions as a result of his dust exposure while working in the mines: 1. Coal workers pneumoconiosis (CWP). 2. Silicosis. 3. Mixed dust pneumoconiosis. 4. Chronic obstructive pulmonary disease (COPD). 5. Emphysema. 6. Adjustment disorder with mixed anxiety and depressive mood. 7. Moderate/major depressive disorder.
In relation to dust exposure in Queensland, damages are sought on a final basis. In relation to dust exposure in New South Wales, provisional damages are sought pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) (DDT Act). Mr Keogh also seeks an order pursuant to s 11A of the DDT Act that further damages may be claimed by him in respect of the following conditions attributable to exposure to dust in New South Wales, should they develop: 1. Rheumatoid arthritis. 2. Scleroderma. 3. Progressive massive fibrosis. 4. Lung cancer.
Mr Keogh also claims interest and costs.
Different statutory modifications of the common law apply to the assessment of damages arising from torts committed in different States.
A further legal issue to be determined is whether the respiratory diseases, and/or the psychiatric conditions, are divisible or indivisible damage.
This is the first case involving CWP decided in the Dust Diseases Tribunal (the Tribunal). It is also the first case concerning CWP decided in any of the courts in New South Wales or Queensland.

[2]

[4]

Moorvale Mine

Mr Keogh alleges that between 15 January 2013 and 15 March 2013 (2 months) and later between 14 September 2013 and 13 August 2014 (11 months) he was employed at the Moorvale Mine (Moorvale) by the second defendant Campbell Mining Services Pty Ltd (Campbell) (ASOC par 6). Mr Talintyre of counsel, instructed by BT Lawyers, appeared for Campbell.
The Further Amended Defence of Campbell filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence): 1. Campbell admits that if CPB breached its duty of care to the plaintiff in respect of the plaintiff's work at Moorvale, then Campbell will be deemed to have breached its non-delegable duty of care to the plaintiff (par 12(d)). 2. Campbell admits that it employed Mr Keogh at Moorvale between 15 January 2013 and 31 March 2013. 3. Mr Keogh did not inhale dust including coal dust in the course of his employment at Moorvale because: his only work duties were to operate diggers, dozers and graders; all diggers, dozers and graders incorporated sealed air-conditioned cabins; no coal or other dust penetrated the cabins of the machinery operated by Mr Keogh in the course of his employment (par 7(b)). 4. Campbell admits that it owed Mr Keogh a duty of care and says that the duty is properly stated as a duty to take reasonable care to avoid exposing the plaintiff to the unnecessary risk of foreseeable injury in the course of his employment, such duty being modified by the operation of ss 305B, 305C and 305D of the Workers Compensation and Rehabilitation Act 2003 (QLD) (the WCR Act) (par 9(c)). 5. Campbell says it was not foreseeable that: 1. That the plaintiff would inhale coal dust in the course of his employment at Moorvale. 2. That the quantity of coal dust the plaintiff might inhale created a foreseeable risk of the plaintiff contracting a lung disease. 3. That the quantity of coal dust the plaintiff might inhale at Moorvale created a foreseeable risk of the plaintiff suffering CWP or mixed dust pneumoconiosis. 4. That the quantity of dust that the plaintiff might inhale at Moorvale would cause the plaintiff to suffer secondary psychiatric injury (par 10(b)). 1. Campbell supplied the plaintiff's labour to CPB to work at Moorvale under a labour hire arrangement and CPB devised, implemented and enforced the system of work, supplied and maintained the plant and equipment and controlled all aspects of the work performed by Mr Keogh at Moorvale (par 12(c)(i) and (ii)). 2. Neither the plaintiff nor any other employee of Campbell working at Moorvale advised Campbell that the cabins of the earthmoving equipment were unsafe or were not adequately sealed to prevent the ingress of coal dust (par 12(c)(v)).
For both periods of employment at Moorvale, Mr Keogh has sued CPB as the occupier, manager and operator of Moorvale (ASOC par 5). Pursuant to the first separate representation order, CPB was separately represented in relation to Moorvale by Mr Griscti of counsel, instructed by Mills Oakley.
The Further Amended Defence of CPB filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence): 1. CPB was not the occupier, manager and operator of Moorvale, but CPB was engaged by the mine operator Peabody Energy Australia (PCI) (C&M Management) Pty Ltd to provide services at Moorvale from May 2009 until September 2014 (par 5). 2. Mr Keogh was employed by Campbell between 15 January 2013 and 31 March 2013 at Moorvale as a machine operator (par 6(a)). 3. Mr Keogh did not inhale dust including coal dust in the course of his employment because: his only work duties were to operate diggers, dozers and graders; all diggers, dozers and graders incorporated sealed air-conditioned cabins; no coal or other dust penetrated the cabins of the machinery operated by Mr Keogh in the course of his employment (par 7(c)). 4. CPB owed Mr Keogh a duty to take reasonable care to avoid exposing the plaintiff to the unnecessary risk of foreseeable injury in the course of his employment, such duty being modified by the operation of ss 305B, 305C and 305D of the WCR Act (par 9(d)). 5. It was not foreseeable: 1. That the plaintiff would inhale coal dust in the course of his employment at Moorvale. 2. That the quantity of coal dust the plaintiff might inhale created a foreseeable risk of the plaintiff contracting a lung disease. 3. That the quantity of coal dust the plaintiff might inhale at Moorvale created a foreseeable risk of the plaintiff suffering CWP or mixed dust pneumoconiosis. 4. That the quantity of dust that the plaintiff might inhale at Moorvale would cause the plaintiff to suffer secondary psychiatric injury (par 10(c)). 1. CPB provided a safe place of work for the plaintiff at Moorvale (see par 12(e) which sets out this allegation in much more detail).

[5]

Boggabri Mine

Mr Keogh alleges that he was employed at Boggabri between 15 September 2014 and 15 June 2016 (21 months).
Mr Keogh alleges that the third defendant Downer EDI Mining Pty Ltd (Downer EDI) was the occupier, operator and manager of Boggabri during his entire time at Boggabri (ASOC par 8). Downer EDI was separately represented for these periods by Mr Rundle of counsel, instructed by Wotton & Kearney.
The Further Amended Defence of Downer EDI filed on 10 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Further Amended Defence): 1. Downer EDI admits that it was the operator of Boggabri (par 3(a)). 2. Downer EDI denies that it employed the plaintiff and says that the fifth defendant Downer Mining Regional (NSW) Pty Ltd (Downer Regional) was the plaintiff's employer at the relevant time (par 5).
For the first eight months between 15 September 2014 and 13 May 2015, Mr Keogh alleges that he was employed by Programmed Integrated Workforce Ltd (Programmed) (ASOC par 9). Programmed was sued as the fourth defendant, but the claim against Programmed has resolved and it took no part in the hearing.
Mr Keogh alleged that at Boggabri, between 13 May 2015 and 15 June 2016 (13 months), he was employed by Downer EDI and by the fifth defendant Downer Regional (ASOC par 11). Mr Rowles of counsel, instructed by Sparke Helmore, appeared for Downer Regional.
The Defence of Downer Regional dated 4 April 2024 raised the following liability issues (references to paragraph numbers below are references to paragraphs in that Defence): 1. Downer Regional admits that it employed the plaintiff from 8 May 2015 to 15 June 2016 (par 4). 2. Downer Regional admits that it owed a duty of care to the plaintiff during that period of employment (par 7). 3. Downer Regional does not admit that it knew or ought to have known that if the plaintiff was exposed to and inhaled coal dust there was a real risk that he could contract lung diseases including CWP and mixed dust pneumoconiosis and suffer psychiatric injuries as a consequence (par 8). 4. Downer Regional denies that it was negligent as pleaded in par 19 of the ASOC and denies that it breached the New South Wales statutory duties pleaded in par 19 of the ASOC (par 9). 5. Downer Regional denies that it breached its contract of employment with Mr Keogh, as pleaded in par 20 of the ASOC (par 10). 6. Downer Regional pleads contributory negligence (as fully set out in par 13 of the Defence).
An Amended Fifth Cross Claim dated 4 April 2024 (A5CC), relating to exposure at Boggabri, was also heard in these proceedings. The cross claimant was Downer Regional and the cross defendant was Downer EDI. Mr Rowles of counsel, instructed by Sparke Helmore, appeared for Downer Regional and Mr Rundle of counsel, instructed by Wotton & Kearney, appeared for Downer EDI. The A5CC claims indemnity for or contribution towards any liability of Downer Regional to Mr Keogh. The claim is made pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

[7]

Coal Workers Pneumoconiosis

Pneumoconiosis is a broad term for lung diseases where the inhalation of dust has caused interstitial fibrosis, which is scarring in the lungs.
The plaintiff tendered the report of a Queensland Parliamentary Select Committee entitled "Black lung white lies" (PX 17). This report inquired into the re-identification of CWP in Queensland. The following appears at p 56 of PX 17: "CWP is a type of pneumoconiosis solely caused by prolonged exposure to coal mine dust. It is one of a broad group of coal mine dust lung diseases (CMDLD) caused by exposure to respirable coal mine dust over several years. Disease develops from the deposit of dust particles and the reaction of the lung tissue to the dust. There are three primary types of lung disease that are classified as pneumoconiosis: • asbestosis, cause by the inhalation of asbestos dust particles • silicosis, caused by the inhalation of silica dust particles, and • CWP, caused by the inhalation of fine coal dust particles. Emphysema, chronic bronchitis, lung function impairment, and diffuse dust-related fibrosis are other manifestations of CMDLD."
The Parliamentary Select Committee also reported as follows: 1. CWP may take several years to develop and there are often no symptoms in the early stages of the disease (PX 17, p 57). 2. CWP is often associated with emphysema (PX 17, p 57). 3. The development of CWP usually requires lengthy exposure to coal dust and generally develops slowly (PX 17, p 60). 4. A significant problem in diagnosing respiratory diseases such as CWP is that there is a long latency period before symptoms emerge (PX 17, p 60). 5. There is no cure for CWP, and treatment consists of managing the symptoms (PX 17, p 61). Damage to the lungs caused by coal dust inhalation cannot be reversed (PX 17, p 61). 6. CWP is completely preventable through avoiding or limiting exposure to coal dust (PX 17, p 61). 7. The risk of developing CWP is directly related to the magnitude and duration of exposure to coal mine dust. The latency period between exposure and development of CWP may be prolonged, but decreases with increases in dust inhalation levels (PX 17, p 61).

[15]

Norseman Mine

In 2004 Mr Keogh left the hotel industry and moved to Kalgoorlie looking for work. He was offered a position with 3D Earth Moving. He was sent to the Norseman Mine (Norseman) as a digger operator. Norseman was an underground coal mine.
Mr Keogh's job at Norseman was to raise the level of the tailings dam. His job was to dig out land mass from a burrow pit, using a digger. The material was then loaded into dump trucks and dumped on top of the dam wall. All of his work was above ground. Mr Keogh said that the spoil which he dug out was clay. There was no rock involved in this work. Once the spoil had been dumped on the dam wall, he used the bucket of the excavator to flatten the edges of the tailings dam wall. Mr Keogh was the only person operating a digger near the tailings dam. There was a water truck which was operating around the tailings dam at all times.
The area of Norseman where Mr Keogh worked was "not a particularly dusty environment". Before he started digging the ground, the area where he worked was flooded with water to make it softer and easier to dig. This reduced the amount of dust that was produced by the digging. The water truck also suppressed any airborne dust. Mr Keogh operated the digger from an enclosed air-conditioned cabin which had good seals and windows that stayed closed. He said that "some very limited dust may have entered my cabin whilst I was working but this was negligible compared to the dust I was later exposed to at coal mines in Queensland and NSW".
Mr Keogh worked at Norseman for around six months.
Mr Keogh was cross-examined about his dust exposure at Norseman by Mr Talintyre (Tcpt 50/23 - 51/31). Mr Keogh said that he did not see any other surface machinery in operation. He described the dust to which he was exposed as "very minimal". Mr Keogh acknowledged that the trucks driving around would have generated some dust from their tyres. There were two excavators at Norseman which Mr Keogh drove. They were both a couple of years old and "were in good nick". They did not have a pressurised cabin, but they had air-conditioning for the cabin. Mr Keogh agreed that at least some dust got into the cabin of the excavators while he was working at Norseman. Mr Keogh also acknowledged that some dust would have got into the ute which drove him from the sign-on area each day to where the excavator was located.
There was no cross-examination to suggest that Mr Keogh was exposed to rock dust at Norseman.

[18]

Sandstone Mine

In late 2005 Mr Keogh started working at the Sandstone Mine (Sandstone), where gold was mined. He worked on a new Komatsu 1250 digger. This machine had an enclosed, air-conditioned cabin. Mr Keogh was involved in preparing a new area for mining by digging away the overburden to create the pit. This was a new area, so the pit was only shallow. He operated his machine about four to five metres below the surface, in the open air.
The overburden he was digging was not sandstone but was topsoil. Once he got deeper it was hard compressed dirt. He said, "there was no rock at this mine".
Mr Keogh was the only digger operator, and he worked alongside a few dump trucks. The land mass he dug out to create the pit was put into the dump trucks and then taken away to be discarded. He kept digging the topsoil until the ground became too hard to dig. At that time he moved to begin working on a different area. Explosives were used to blast the hard overburden, and he returned to the blast sites one to two weeks after the blast to remove the overburden. He put the overburden into dump trucks to be taken away. Mr Keogh said that a water truck operated in his area at all times. He occasionally operated a grader to create flat surfaces in the mine.
Mr Keogh said that Sandstone was not a particularly dusty environment. Some dust was produced when the machinery was in contact with the dirt, but he had negligible exposure to dust inside his cabin which was enclosed. Further, the water truck stayed close to him as he worked. Mr Keogh worked at Sandstone for about nine months.
In oral evidence-in-chief Mr Keogh said that there was no sandstone in the mine, and the name of the mine came from the name of a nearby town called Sandstone. He said that the machine he used was a brand-new machine which was in "good nick".
Mr Keogh was cross-examined by Mr Talintyre about his time at Sandstone (Tcpt 52/50 - 53/20). Mr Keogh said that his excavator worked alongside four small dump trucks. He accepted that some of the dust would have got into the cabin of his excavator. This was so "even though it was a pretty good excavator that one".

[20]

Yarrie and Nimingarra Mines

In September 2006 Mr Keogh started a job with CPB at the Yarrie and Nimingarra Mines, operating diggers, dozers and graders. Both were open cut iron ore mines in the Pilbara. Mr Keogh spent 95% of his time at the Yarrie Mine (Yarrie) as the Nimingarra Mine (Nimingarra) was put into care and maintenance in 2007.
At Yarrie Mr Keogh removed overburden from the iron ore. The overburden was then pushed away by a dozer. Mr Keogh also operated diggers and dozers to collect iron ore and load it into trucks. The pit in which he performed this work was about 40 metres deep. There was usually a water truck operating near him.
Mr Keogh said that dust was produced when diggers and dozers moved spoil. Compared to other mines in which he had worked, there were more machines working in the pit at Yarrie. He observed more dust in the air than he had at previous mines. Some this dust entered the cabin of his machinery.
When Mr Keogh worked at Nimingarra, he was a supervisor who drove a Landcruiser to observe the machinery operators perform their work. He stayed in the car with the windows up and the air-conditioning on.
Mr Keogh said that at both Yarrie and Nimingarra it was all hard rock mining. This was the first time he had come across this. He worked there for a bit over two years. The last 12 months was spent solely as a supervisor. He was not operating machinery during this time. When he was driving the Landcruiser and watching the machine operators perform their work, he was about 100 metres away. This period of work "was not dusty at all".
In oral evidence-in-chief Mr Keogh was asked to compare the dust at Yarrie with the dust in his later work at open cut coal mines in Queensland and New South Wales. He said that the comparison was "totally different" and "very minimal". Mr Keogh said that in Queensland the crews were bigger and the machines were bigger. There were more machines running around the pits in Queensland. He said that his reaction to the dust he observed in Queensland was a "wow factor". In Western Australia there was a little bit of dust but not all the time. In the Queensland mines there was dust all the time.
Mr Keogh was asked to compare the Yarrie exposure with the Boggabri exposure. He said that Boggabri was "disgusting". He said that he just shook his head and could not believe the amount of dust he saw at Boggabri.
Mr Keogh was cross-examined by Mr Talintyre about Yarrie and Nimingarra (Tcpt 56/30-43). Mr Keogh acknowledged that he did not sit in the Landcruiser for 12 hours a day but got out from time to time to stretch his legs or have a cigarette. This possibly exposed him to dust from work that was going on 100 metres away. It depended on which way the wind was blowing.

[23]

Evidence of Mr Keogh

Mr Keogh gave the following evidence in his first affidavit (PX 1, Tab 1). In November 2008 Mr Keogh was approached by CPB to transfer within the company to work as the operator of diggers, dozers and graders at the Poitrel Coal Mine (Poitrel) in Coppabella in Queensland. This was an open cut coal mine. Most of his dealings were with CPB. They were his day-to-day contact at the mine and they gave him instructions about where he was working and what he was to do.
Poitrel operated on a 24-hour basis and Mr Keogh worked 12-hour shifts. He usually spent about 10.5 hours in a machine during each shift. The mine was a much bigger operation than any of the places he had worked in before. His job was to prepare new areas for mining by removing the overburden and "cleaning" the coal seam. He was then engaged in digging coal, moving or redistributing the coal stockpiles and flattening areas with a grader. He regularly disturbed rock in which coal was located. He worked in a pit around 100 metres deep. Diggers were used to remove as much of the overburden as possible so that the coal seam was exposed. To "clean" the coal seam, the digger would drive across the exposed coal bed to remove the final layer of dirt with the bucket. Initially, digging was done in topsoil, but when the digger hit rock, this had to be blasted. After the blast Mr Keogh would come back to the area with his digger and dig out the blasted rock until the coal seam was reached. Mr Keogh was predominantly digging through hard rock which was very dusty work. He said, "Poitrel was one of the dustiest places I have ever worked".
Whenever the bucket of the digger or dozer came into contact with the coal seam, significant airborne dust was produced. Such dust was also produced by other diggers and dozers working nearby. Mr Keogh could see this airborne dust "for the entirety of the time that I performed this work". He said, "there were clouds of it".
Before Mr Keogh commenced digging a coal seam, he had to get out of his machine and inspect the coal seam to see how deep the layer was. He did this a couple of times per shift. Dust was also thrown up when the digger was used to move or redistribute the stockpiles of coal. He said that "significant airborne dust was produced".
Mr Keogh often operated a grader to create flat surfaces in the mine. However, most of his work was on diggers and dozers.
Mr Keogh said that there were two water trucks on the mine site which constantly travelled between the pits. The water trucks were unreliable and often broke down. They were not enough to stop the dust which was produced. This was in contrast to Mr Keogh's experience in Western Australia where the water trucks were constantly available and were effective in keeping down the dust levels.
Mr Keogh said that in many of the machines he operated, the seals of the cabin were damaged, which allowed dust to enter the cabin. Some of the windows could not be closed, which led to dust entering the cabin. Clips which held the windows closed were sometimes broken, so the windows opened and let in dust. Mr Keogh said, "I was often covered in dust at the end of my shift, and it would coat my clothes, hair and exposed areas of skin". This was in contrast to his work in Western Australia.
When Mr Keogh was out of his cabin inspecting the coal seam, there was no protection from the dust generated by nearby machinery. Machine operators were expected to sweep the coal dust out of the cabin at the end of each shift, but this often did not happen, so Mr Keogh was starting work in a cabin which was coated in dust. Mr Keogh did clean out his cabin, but this stirred up dust in the air and inside the cabin which he breathed in.
Mr Keogh said, "the dust I was exposed to at the Poitrel Mine was far worse than anything I had encountered in Western Australia". He said this was because of the poor quality of the seals and windows in the cabins of the machinery, the much larger fleet of machines that worked at Poitrel and the depth of the pit at Poitrel which made it difficult for dust to dissipate. He said that the dust "would build up into a thick fog throughout the shift". Mr Keogh found that the dust at the coal mine was a lot finer than the dust he had encountered in Western Australia. This meant that it got into the cabins more easily.
In par 110 of his first affidavit Mr Keogh said: "Doing the best I can, I would estimate that my work at Poitrel was at least 10 times dustier than mine sites I had worked at in Western Australia. Although the Yarrie Mine was slightly dustier than the other mine sites in Western Australia, it was still nowhere near as bad as Poitrel in terms of dust."
At Poitrel Mr Keogh was never provided with respiratory protection and was never told to wear respiratory protection. He was never told that exposure to coal dust or dust generally could pose a risk to his health.
Mr Keogh said that he had to complete a pre-start form for each machine before he started his shift. He recorded on these forms when seals and windows were broken, but he said, "nothing was done, so I stopped complaining and got on with it".
Mr Keogh said that dust monitoring did take place at Poitrel. In par 117 of his first affidavit he said: "When dust monitoring was performed in the machine cabins, it was left to the mine supervisors to elect which machines would be tested. To ensure that their testing results were within limits, they would always elect for the testing to be performed in new or recently maintained machines, which were properly sealed. I cannot recall any testing being done when we worked in clouds of dust."
In his second affidavit (PX 1, Tab 2), Mr Keogh said that when he first got to Poitrel he was taken aback. There were so many more machines working together, much more activity and dust and dirt flying around. The pit was a lot deeper than those in Western Australia. The machines were a lot bigger at Poitrel. The excavators which Mr Keogh drove in Western Australia were usually 250-tonne excavators, and the biggest one was 360 tonnes. The excavators at Poitrel were 600-tonne excavators.
Mr Keogh said that the four-wheel drive vehicles which were used to take workers from the sign-on area to the machines in the pit were "filthy, both inside and out". The air-conditioning in these vehicles "just circulated the dust throughout the vehicle". Mr Keogh saw dust pushed out of the vents and into the breathing space when a driver turned on the air-conditioning in these vehicles.
Mr Keogh said that at the end of a shift, he and his co-workers were taken back to the main building in the four-wheel drive vehicles, and everyone was covered in dust and dirt, which the air-conditioning re-circulated inside the vehicle. During a shift Mr Keogh had to pat down his uniform once or twice to try and get some of the dust off it. Mr Keogh travelled home with his dirty work clothes on. He left the dirty uniform on until he went to bed. He used to shower first thing in the morning. The mess hall at the Coppabella camp was full of other workers in their dirty work clothes.
Mr Keogh said that one of the reasons he knew that the seals of the cabins in the machines were not working, was that he could often see daylight through the rubbers in the windows. He could also hear the door rattling while the machines were operating. The dozers were particularly bad, with degraded cabin seals and rattling doors. When such machines were operating they vibrated, and the rattling of the cabin caused gaps to emerge between the seals and around the cabin doors.
Mr Keogh said that he complained about these problems and sometimes they were fixed after a few days, but sometimes nothing was done. He said, "it was just part and parcel of working on a mine site and the attitude was to 'harden up'".
Mr Keogh gave further evidence about sweeping up the dust in the cabin. He said that the coal dust was light and powdery, and he could see a dark cloud of it form as he swept the cabin. He tried to sweep this dust out the door, but there was a lip at the bottom of the door so he could not get all of it out. Some of it stayed in the cabin.
Mr Keogh estimated that he dug coal for about 30%-40% of the time he worked at Poitrel. The rest of the time he dug overburden, which included a lot of rock.
There was no cross-examination by Mr Talintyre of Mr Keogh in relation to Poitrel. At the start of the second day of the hearing Mr Talintyre made a number of admissions of breach of duty on behalf of his clients. There was an admission by CPB of breach of its duty of care as the employer of Mr Keogh for the period at Poitrel (Tcpt 61/38). The evidence of Mr Keogh concerning Poitrel thus stands unchallenged. This includes his evidence about the pre-ordained dust monitoring results.

[24]

Evidence of Mr Smith

Mr Vivian Smith swore an affidavit dated 18 March 2024 (PX 1, Tab 3). Mr Smith has worked in the coal mining industry since 2002. He is currently a new-to-industry trainer for workers in open cut coal mines. He met Mr Keogh at both Poitrel and Moorvale.
Mr Smith worked at Poitrel from September 2010 to August 2011. He was initially a machine operator, operating dozers, trucks and graders. He and Mr Keogh operated machines in the same team. He said that "Poitrel was a very dusty work environment". Working with coal produced a lot more dust than working with overburden. The amount of dust depended on how dry the weather was and which way the wind was blowing. Some days were worse than others, "but there was always dust".
Mr Smith said that the seals on the windows and doors of the cabins of the machinery at Poitrel were "more often than not in poor repair, cracked and damaged". He observed dust to enter the cabins during mining operations. Some of the dozers had sliding windows, which did not seal properly, as the plastic clips were often broken or missing. This meant that the windows opened during the shift.
Mr Smith said that the air-conditioning in the cabins circulated air, including dust, back into the cabin. The fans sometimes drew air in through the cracks and gaps in the seals, windows and doors, so they effectively sucked dust back into the cabin. They were not pressurized systems, which have a filter and a mechanism to prevent air from outside the cabin being sucked in.
Mr Smith used to clean the cabin of his machine at the start of every shift. He found that his skin, hair and clothes had coal and other dust all over them by the end of the shift. When he got home, he had dust in his nose and would spit dust out.
Mr Smith confirmed that it was necessary to get out of the machines a number of times during each shift to inspect the coal seam. It was also usual for him to get out of the machine and stretch his legs for a few minutes and have a break. Mr Smith never wore a mask and was never warned about the dangers of inhaling dust.
Mr Smith said that the roads and ground at Poitrel were all covered in coal and rock dust. They were unsealed dirt roads. He said that there were never enough water trucks at Poitrel to keep the dust down. It often took a water truck an hour or two to get back to a site which had been sprayed, by which time the previous application of water had dried out and the dust was again thrown up by vehicles travelling along haul roads.
After a few months Mr Smith was promoted to be a training co-ordinator. In that role he often went out to the pits with operators to teach them about new equipment or to assess the abilities of qualified operators. He thus continued to observe the state of the cabins and the air and dust inside them.
Mr Smith had complained to his supervisor at Poitrel, who was employed by CPB, about the dust getting into the cabins of the machines. He said, "the complaints were often ignored". Even where a door seal was replaced, that only reduced the amount of dust entering the cabin. Mr Smith was never given any respiratory personal protective equipment or told to wear any equipment while he worked at Poitrel. He never saw anyone wearing a mask.
Mr Smith was aware of dust monitoring being conducted at Poitrel. He said these tests were done on new machines when they had just come back from being serviced. The machine chosen was always working on overburden rather than cutting coal. The water truck operated in close proximity to the testing machine for most of the day. He said, "all of this was done to ensure that the dust results were favourable".
Mr Smith was not cross-examined by Mr Talintyre, due to the admission of breach of duty of care. The evidence of Mr Smith about Poitrel thus stood unchallenged. This includes his evidence about the manipulation of the dust monitoring results.
Mr Smith was cross-examined by Mr Griscti, but this related to Mr Smith's time at Moorvale, which is discussed below.

[27]

Evidence of Mr Keogh

In his first affidavit (PX1, Tab 1) Mr Keogh said that he worked at Moorvale January 2013 to March 2013 and then again from September 2013 to September 2014. He was employed by Campbell, the second defendant, who deployed him to Moorvale. Most of his dealings there were with CPB, who gave him instructions about where he was working and what he was to do. Mr Talintyre conditionally admitted breach of Campbell's non-delegable duty of care as the employer of Mr Keogh, while he worked at Moorvale, but only if the Tribunal was satisfied that CPB had breached its duty as the operator of Moorvale (Tcpt 61/44). The running of that issue was in the hands of Mr Griscti.
Moorvale operated on a 24-hour basis. Mr Keogh worked 12-hour shifts and spent about 10.5 hours of each shift operating machinery. The work was basically the same as the work he had performed at Poitrel.
Mr Keogh said that there were one or two water trucks that travelled around the mine attempting to suppress dust, but "these were totally inadequate and I would still see clouds of airborne dust as I operated the machines". Mr Keogh found that the seals on the cabins of the machinery were damaged, and the windows would not stay closed. Dust seeped into the cabin while he was working. At the end of each shift, he was covered in dust. He inhaled this dust throughout each shift and he could taste it.
Operators were expected to clean out their cabin at the end of each shift, but often operators did not do this. Mr Keogh kept up the practice of cleaning the cabins after his own shift. Cleaning caused more dust.
Mr Keogh was never provided with, or advised to wear, any respiratory protection. He was never told that exposure to coal dust or dust generally could pose a risk to his health. Problems with the dust sealing on equipment was brought up at toolbox talks but "nothing was done about the poor seals and windows".
Between his two stints at Moorvale, Mr Keogh drove a road truck for about six months. He was not exposed to dust during this period. When he went back to Moorvale he was still working for Campbell as an operator of diggers, graders and dozers. He had the same exposure to dust as he had during his first period.
In par 62 of his second affidavit (PX 1, Tab 2) Mr Keogh recalled that during the break between his two stints at Moorvale, he did work at the South Walker Open Cut Coal Mine (South Walker) in Queensland for about six to eight weeks. He was a machine operator and dug overburden only. Mr Keogh said that was not exposed to the level of dust at South Walker as he had been at other Queensland coal mines. It was after working at South Walker that he did some truck driving, until he got a phone call from Campbell asking him to go back to work at Moorvale. That resulted in his second stint of working at Moorvale.
In his second affidavit Mr Keogh said that at Moorvale he was driven from the pre-start meeting room to the machines in a four-wheel drive, which was dirty and dusty. Mr Keogh found that his uniform was filthy with dust at the end of a shift. He used to pat the dust out of his uniform several times a day. He travelled back to the camp where he was living at Nebo Junction. He stayed in his uniform until he went to bed, and he did not change it every day.
The problems with the cabin seals, doors and windows which Mr Keogh experienced at Poitrel, were also a problem at Moorvale. Coal and rock dust came into the cabins of the machines that he operated. Again, Mr Keogh had to get out of his machine several times a shift, just as he had at Poitrel. There was dust hanging in the air when he got out of the cabin.
Mr Keogh estimated that he spent 30%-40% of his time at Moorvale digging coal. The rest of the time he dug overburden, which included rock.
In oral evidence-in-chief Mr Keogh was asked to compare the dust in the air outside the cabin and the dust inside the cabin, between his work at Poitrel and his work at Moorvale. He said (Tcpt 31/33),"[i]t's about basically the same". Mr Keogh said that there was never a day operating machinery where he did not see dust in the air inside the cabin and on the flat surfaces of the cabin.
Mr Keogh was cross-examined by Mr Griscti concerning his time at Moorvale. It was suggested that after machinery came back from maintenance, the seals in the cabin were in good condition. Mr Keogh disagreed saying "they'd still be the same as when they went in there". He also said that the windows were in the same condition when the machinery came back from maintenance. He said that the maintenance involved working on the motors and the running gear but there was no improvement in relation to windows and doors.

[30]

Evidence of Ms Lara

Ms Yanel Lara is an occupational hygienist who provided a report dated 19 April 2023 (DX 3, Tab 1). Ms Lara was asked by the solicitors for Moorvale to answer a number of questions.
Ms Lara was asked to consider a spreadsheet entitled "Qld DRNM Coal Report - Peabody - Moorvale". She was asked to state whether the figures in the spreadsheet exceeded the Occupational Exposure Limit (OEL) in place during the relevant time, for either respirable coal dust or respirable quartz.
Ms Lara said that during the period when the plaintiff worked at Moorvale, the OEL for coal dust was 3.0mg/m³, as an 8-hour time-weighted average (TWA) and for quartz the OEL was 0.1mg/m³, as an 8-hour TWA.
Ms Lara said that an OEL does not identify a dividing line between safe and dangerous levels of substances of healthy or unhealthy working environments. Adverse health effects might be experienced by some workers due to natural biological variation and a range of individual susceptibilities. An OEL establishes a statutory maximum upper limit which should be considered in assessing when appropriate control measures are required. Ms Lara said that good occupational hygiene practice means that preventative intervention should take place when the exposure exceeds one half of the OEL.
The spreadsheet which Ms Lara examined contained 96 air samples from Moorvale for the years 2013 and 2014. Out of those 96, a total of 53 records were said to be conducted by sampling workers operating dozers or graders, performing pre-strip or overburden removal, or coal removal. Of the 96 records, none were above the OEL for coal or quartz.
Ms Lara said that there are a number of control measures used in mining to minimise exposure to dust in open cut mines. These include: 1. Keeping coal dust damp to minimise dust generation. 2. Minimising the drop distances of material when loading trucks or stockpiles. 3. Avoiding overloading trucks to reduce coal spillage and the resultant generation of traffic dust. 4. Enclosing cabins with filtered air-conditioning systems with regular filter replacement. 5. Effective door and window seals in enclosed cabins. 6. Maintaining housekeeping inside cabins, amenities, offices and workshops. 7. Administrative controls, such as limiting overtime, or changing work tasks.
Ms Lara set out a number of assumptions she was asked to make to answer some of the questions. She was asked to express a view as to whether Mr Keogh would have been exposed to levels of coal or quartz dust exceeding the OELs if he worked in air-conditioned cabins or excavators. She was asked to assume that he worked in diggers, dozers and graders in air-conditioned cabins that were airtight with seals that did not leak. Her opinions on these matters were of no utility to the court, as these assumptions were simply not made out on the evidence.
Ms Lara was cross-examined by Mr Tzouganatos (Tcpt 224/36 - 232/50). Ms Lara said that while she was provided with the spreadsheet containing the figures, she was not provided with any reports from which those spreadsheet entries were derived. She acknowledged that an air sampling report would be prepared by a scientist who conducted and reported each study, and the report would include comments about what was happening at the time when the study was conducted. Such reports would also record the weather conditions at the time the test was conducted and whether the machine was offline for a period of time during the sampling period. The report would have recorded whether the sample was conducted in or outside the pit.
Ms Lara agreed that it is difficult to extrapolate from one test result conducted on one day on one worker to another worker working on another day.
Ms Lara was asked whether the 53 samples in the period from 2013 to 2014 would permit her to reliably report anything in relation to Mr Keogh's potential exposure while working in different machines. Ms Lara acknowledged that it would have been helpful to have more information about Mr Keogh in order to express an opinion. Ms Lara agreed that the workplace environment and day-to-day tasks can vary significantly, which can lead to variations in personal exposure levels. Ms Lara also agreed that individual results may not be representative of the average or mean exposure for a similar exposure group.
Ms Lara agreed that it has been known for over a century that coal miners are at real risk of contracting lung diseases if means are not taken to protect them from inhaling coal and silica dust.
Ms Lara agreed that if she had observed machine operators coming out of their machine covered in dust, that would have been a major occupational hygiene concern.

[31]

Evidence of Ms Topping

Ms Carolyn Topping is an occupational hygienist who provided a report to the plaintiff's solicitors (PX 1, Tab 25). In relation to the work done by Mr Keogh at Moorvale, Ms Topping said the following: 1. Based on the conditions described by Mr Keogh, there was a foreseeable and real risk of contracting a lung disease as a result of exposure to coal dust and crystalline silica. 2. There were reasonably practicable measures available to an employer and a mine operator to prevent or minimise the risk of contracting lung disease well before 2013. 3. The working conditions described by Mr Keogh showed that the protective measures implemented were not effective. In particular: 1. the seals on the cabins of the machinery were damaged and the windows would not stay closed; 2. dust would seep into the cabin during the work shift; 3. at the end of the shift Mr Keogh was covered in dust, he inhaled dust during his shift and he tasted dust; 4. the water trucks were totally inadequate; 5. operators were expected to clean out their cabin at the end of each shift, but some colleagues did not comply; 6. cabins were constantly filthy even when Mr Keogh started his shift; 7. cleaning the cabin disturbed the dust, causing more dust; 8. Mr Keogh was not provided with or advised to wear respiratory protection.
It is noted that Ms Topping expressed similar views concerning Poitrel, Boggabri and Blackwater.
In cross-examination by Mr Griscti, it was suggested that the 53 sampling records dealt with in the report of Ms Lara constituted sufficient information for a reliable and quantitative assessment of dust exposure at Moorvale. Ms Topping said (Tcpt 133/40) that you need to know the number of people in the crews and how many people are in the exposure group. The bigger the crew, the more samples you have to take.
Ms Topping acknowledged that in providing her opinion, she was reliant upon the accuracy of the statements of Mr Keogh and Mr Smith concerning dust exposure (Tcpt 135/45).
Ms Topping acknowledged that exposure monitoring or taking air samples is part of a risk management process (Tcpt 136/8). Ms Topping said that it is an important tool, but to be able to rely on the information, tests need to be conducted in a way that you can rely on the results. You need to get enough samples. You need to be able to see if you can infer something from those samples to a broader group. You need to rely on the process of how the sample was collected.

[32]

Findings of Fact in Relation to Moorvale Mine

I make the following findings of fact in relation to Moorvale: 1. Mr Keogh worked for 10.5 hours each 12-hour shift operating machinery. His work was basically the same as he had done at Poitrel. He was either digging out coal or digging overburden. 2. The water trucks which drove all around the site were inadequate to suppress the clouds of airborne dust which arose from operating the machines. 3. The seals in the cabins of the machines were damaged and the windows would not stay closed. Dust seeped into the cabin while Mr Keogh was working. 4. At the end of each shift Mr Keogh was covered in dust. He inhaled this dust throughout each shift and he could taste it. 5. Operators did not clean out their cabin and this meant that the cabins contained dust when Mr Keogh started his shift. 6. Mr Keogh was never provided with any respiratory protection and was never told that exposure to coal dust or dust generally could pose a risk to his health. 7. Problems with the dust sealing on equipment were brought up in toolbox talks but nothing was ever done about the poor seals and windows. 8. When Mr Keogh was transported to and from the pit in a four-wheel drive, that vehicle was dirty and dusty. 9. Mr Keogh's uniform was filthy with dust at the end of each shift. 10. Mr Keogh spent 30%-40% of his time at Moorvale digging coal. The rest of the time he dug overburden, which included rock. 11. The dust in the air both inside and outside the cabin was the same at Moorvale as it was at Poitrel. 12. There was never a day where there was no dust in the air inside the cabin and outside the cabin. 13. When machinery came back from maintenance, the seals were still in the same poor condition as when the machines went in for maintenance. 14. Mr Haynes did not do work on the machines himself and he acknowledged that the Specification and Maintenance Strategy document did not refer to the maintenance of seals. That document did not relate to what he described as "minor components". 15. The mining industry in the Bowen Basin in Queensland is always booming and it is still hard to obtain experienced multi-skilled plant operators. 16. While the 53 records examined by Ms Lara, occupational hygienist, disclosed no readings above the OEL, Ms Lara did not have access to data showing where such readings were taken and the circumstances, including weather conditions, on the days the readings were taken. 17. It has been known for over a century that coal miners are at real risk of contracting lung diseases if means are not taken to protect them from inhaling coal and silica dust. 18. If an occupational hygienist observed machine operators coming out of their machine covered in dust, that would have been a major occupational hygiene concern. 19. There are a number of control measures available to be used in open cut coal mines, including: 1. Keeping coal dust damp to minimise dust generation; 2. Minimising the drop distances of material when loading trucks or stockpiles; 3. Avoiding overloading trucks to reduce coal spillage and the resultant generation of traffic dust; 4. Enclosing cabins with filtered air-conditioning systems with regular filter replacement; 5. Effective door and window seals in enclosed cabins; 6. Maintaining housekeeping inside cabins, amenities, offices and workshops; 7. Administrative controls, such as limiting overtime, or changing work tasks. 1. Based on the conditions described by Mr Keogh, there was a foreseeable and real risk of contracting a lung disease as a result of exposure to coal dust and RCS. 2. The working conditions described by Mr Keogh showed that the protective measures implemented were not effective.
There was no evidence called by CPB in relation to Moorvale to contradict the evidence given by Mr Keogh and Mr Smith concerning the constantly dusty conditions in which machine operators worked. In those circumstances, I unreservedly accept the evidence of Mr Keogh and Mr Smith in relation to working conditions at Moorvale.

[34]

Evidence of Mr Keogh

In his first affidavit (PX 1, Tab 1) Mr Keogh said that he started a job as the operator of dozers, diggers and graders at Boggabri in around September 2014. This was an above ground coal mine. He was sent to Boggabri by his then employer, Programmed, which was a labour hire company. He worked 12-hour shifts on an 18-day roster. He spent about 10.5 hours of each shift operating machinery. His work was basically the same as he had done at Poitrel and Moorvale. The machine operators were split into crews either digging out coal or digging overburden, to reveal and clean the coal seam. Until the last year of employment at Boggabri, Mr Keogh was mostly digging hard rock and less often coal. In the last year of his employment, he was only digging coal.
Mr Keogh said that Boggabri was a very dusty mine. Clouds of dust were released when he operated machinery to prepare new areas for mining, digging coal, or moving and redistributing the coal stockpiles. He worked in close proximity to about 60 dump trucks, 7 diggers, 10 dozers, a couple of graders and 2 or 3 water trucks. He said, "the amount of dust these machines produced working in such close proximity was extraordinary". Mr Keogh said that all of this activity produced dust in a small area and that Boggabri was one of the dustiest mine sites he worked at.
Once again, the cabins of the machines were poorly sealed and the windows did not close properly. Dust entered the cabin and built up over the course of a shift. He inhaled this dust throughout each shift.
Mr Keogh said that the water trucks were inadequate and that he saw airborne dust for the entirety of the time he operated his machinery. He said that the inside of his cabin "was black with it". He often found that the cabin had not been cleaned by the previous operator. He would find it "filthy with coal dust". He cleaned out his cabin at the end of each shift using a dustpan and brush.
Mr Keogh said that he inhaled airborne dust even when he was on his half hour lunch break at the crib huts. The dust produced by the mine travelled the distance to the crib huts during his breaks.
At Boggabri Mr Keogh was never provided with, or advised to wear, any respiratory protection. He was never told that exposure to coal dust or dust generally could pose a risk to his health.
Mr Keogh worked at Boggabri for Programmed until May 2015, and then he started working at Boggabri for Downer Regional. Toolbox talks were held once a month and there were daily pre-start talks. Nothing was ever done about poor seals and windows. Dust monitoring was performed "a handful of times whilst I worked at Boggabri". Mr Keogh said that the dust monitors were always worn by workers in new machines or machines where the seals had recently been replaced. He never saw any air monitoring conducted where he worked in clouds of dust.
In his second affidavit (PX 1, Tab 2) Mr Keogh gave evidence about his reaction when he first went to Boggabri. He saw that it was even dustier than Poitrel and Moorvale. He thought to himself "What the hell is this? You've gotta be joking!"
Mr Keogh had a distinct recollection of seeing a dust cloud hanging over the pit which was visible from a couple of kilometres away. He used to see this on his drive to work from the pub about half an hour away, where he lived while he worked at the mine. Mr Keogh was driven to and from the machines by four-wheel drive vehicles. Sometimes these were minibuses. The journey took about 10 minutes. These vehicles were "filthy inside and out and I was exposed to the dust circulating inside the vehicle". He was also exposed to similar dust when he was driven back from the machines to knock off work. His uniform became dusty, and he had to pat it down to get the dust off a couple of times each shift.
Mr Keogh gave detailed evidence about the dust to which he was exposed when having his lunch at the crib huts. Sometimes he sat outside, which also exposed him to dust. For the last 12 months that he worked at Boggabri the crib hut was actually in the pit. It was about 20 metres below the surface in an area where mining had finished. Digging of coal was going on lower down. The crib hut was particularly filthy and dusty during this period when it was in the pit and workers were digging coal nearby.
At Boggabri Mr Keogh also got out of his machine when digging coal to inspect the seam. He also got out of the machine to stretch his legs. This exposed him to dust.
In pars 86 and 87 of his second affidavit Mr Keogh said the following: "I refer to paragraphs 144 and 148 in my earlier affidavit in which I described the toolbox talks and pre-start talks at Boggabri. On occasion, my supervisor told me and my co-workers that there were VIPs coming to the mine for a tour, so we had to shut down early. The supervisors stopped the digger fleets and water trucks were specifically brought in to dampen the dust. We effectively were on a go-slow or a complete stop so that it was not dusty when the VIPs came. As soon as the VIPs left, operation started up again as normal. The dust levels in the pit went up."
In oral evidence-in-chief Mr Keogh described the conditions at Boggabri as "disgusting" and he said, "I'd never seen nothing like that in my life". Everyone was working in the one pit close together. Mr Keogh said that at Boggabri all the machines he operated were old and there were no new machines. He was asked to compare the dust inside the machine and the dust outside the machines at Boggabri to what he had experienced at Poitrel and Moorvale. He said, "I'd nearly say four times worse". He said, "it was just a cloud of black dust".
Mr Keogh was cross-examined by Mr Rowles. Mr Keogh basically confirmed the evidence he had given in-chief about conditions at Boggabri (Tcpt 84/21 -87/6).

[35]

Evidence of Mr Bailey

Mr Tony Bailey gave evidence-in-chief by an affidavit dated 19 March 2024 (PX 1, Tab 5). Mr Bailey has worked in the coal mining industry as an operator since around 2006. His work has been at New South Wales coal mines and he is currently a machine operator at the Mount Thorley mine. In around 2015 or 2016, for about six months, he worked at Boggabri as a dozer operator. He worked with Mr Keogh. They were on the same roster. Both were operators and their work was very similar.
Mr Bailey said that the mining operations at Boggabri caused clouds of dust to go up into the air and swirl around the machines. When a load was dumped into a truck, "it was so dusty I couldn't even see the rest of my machine". He said that the diggers were worse because the dirt was pulled towards the machine rather than being pushed away. He said of all the coal mines where he has worked, "Boggabri was definitely the worst in terms of the dust levels around the mine site". He described it as "basically a large dust bowl". Mr Bailey said there were never enough water trucks to keep the dust down. Sometimes Mr Bailey called a supervisor and asked for a water truck to be sent, but it was usually an hour or two before the water truck showed up. It was worse on night shift.
Mr Bailey said that at Boggabri the machines had an enclosed, air-conditioned cabin. However, the cabins were not pressurized, as they are in the machines in his current job at Mount Thorley. He described the Mount Thorley machines as very different to the ones he operated at Boggabri. These newer machines have an alarm system which goes off if the cabin is not pressurized. If there is a pressure change inside the cabin, so that the operator is not protected from the dust outside the cabin, an alarm goes off. There were no such systems on the machines at Boggabri. Even these pressurized machines get some dust inside the cabin. However, he said, "it is far less than the dust I saw in the machines I operated at Boggabri".
Mr Bailey said that at Boggabri the rubber seals on the cabins were often brittle and cracked. The air-conditioning in the cabin recycled the dusty air. Some of the diggers had windows which did not close properly. At times Mr Bailey went for a chat with Mr Keogh, and he observed dust inside Mr Keogh's cabin. At the end of each shift at Boggabri there was a layer of dust inside the cabin on all surfaces. Mr Bailey also used to get out of the cabin during a typical shift to check the coal seam. This caused him to be exposed to the dust in the open air. Mr Bailey said that he could not get away from the dust at Boggabri, even at the crib huts. Dust from the mine got inside the crib hut when people walked in or out, or when windows or doors were opened. He said, "the dust was so bad I could write my name in it on the tables".
Mr Bailey said that at the end of each shift at Boggabri, his hair, skin and clothes were covered in dust. He complained to his supervisors about dust getting into the cabins, but he never saw a new set of seals or window clips installed on machinery. When Mr Bailey found a problem with a machine during a pre-start inspection, he would report it, but the fitters rarely came to fix it.
Mr Bailey was never given a dust monitor to wear at Boggabri, but he saw monitoring going on, when monitors were put on operators working in areas with less traffic, so the dust levels were lower. On those days he observed the water truck to spend a great deal of time in the area where the dust monitor was located.
Mr Bailey was never given a mask and was never warned that dust could make him sick.
Mr Bailey was not cross-examined and thus his evidence concerning conditions at Boggabri stands unchallenged.

[36]

Findings of Fact in Relation to Boggabri Mine

I make the following findings of fact in relation to Boggabri: 1. Mr Keogh worked for about 10.5 hours of each 12-hour shift operating machinery. 2. The work he did was basically the same as the work he did at Poitrel and Moorvale. 3. In the last year of his employment at Boggabri (when he was employed by Downer Regional) he was only digging coal. Prior to that last year he was mainly digging hard rock and less often digging coal. 4. Boggabri was a very dusty mine. 5. There were a large number of heavy machines operating in close proximity which produced a great deal of dust. 6. The cabins of the machines operated by Mr Keogh were poorly sealed and the windows did not close properly. Dust entered the cabin and built up over the course of each shift. 7. The water trucks were inadequate to suppress dust. 8. The inside of the cabin of Mr Keogh's machinery was black with dust. It had often not been cleaned by the previous operator. 9. Mr Keogh also inhaled airborne dust during his half-hour lunch break at the crib huts, where dust from the pit reached. 10. Mr Keogh was never provided with any respiratory protection and was never told that exposure to coal dust or dust generally could pose a risk to his health. 11. Complaints were raised about poor seals and windows at toolbox talks but nothing was ever done about it. 12. Dust monitors were only worn by workers in new machines or machines where seals had recently been replaced. Mr Keogh was never asked to conduct any dust monitoring. 13. Mr Keogh could see a dust cloud hanging over the pit which was visible from a couple of kilometres away. He used to see this on his drive to work. 14. Mr Keogh and other workers were transported to and from the pit by four-wheel drive vehicles or minibuses which with filthy inside and out and which exposed him to further dust. 15. At the end of each shift his uniform was dusty and he had to pat it down to get the dust off several times during a shift. 16. On occasion when VIPs came to the mine for a tour, supervisors stopped the digger fleets and the water trucks were brought in to dampen the dust. Once the VIPs left, the operation started up again as normal and dust levels in the pit went up. 17. The dust which Mr Keogh experienced at Boggabri was four times worse than the dust at Poitrel or Moorvale. 18. The evidence which Mr Keogh gave about dust, poor dust seals on cabins, dust in cabins, dust inside the crib hut and dust monitoring was corroborated by the evidence of Mr Bailey, who was not cross-examined.
No evidence was called by Downer EDI or by Downer Regional to establish their version of the conditions at Boggabri. Nor was there any cross-examination directed to Mr Keogh or Mr Bailey to challenge what they said about the conditions at Boggabri. I unreservedly accept the evidence of Mr Keogh and Mr Bailey concerning the dusty conditions at Boggabri.

[38]

Evidence of Mr Keogh

In his first affidavit (PX 1, Tab 1) Mr Keogh said that he started work at Blackwater in late 2016. This was an open cut coal mine. Most of his dealings were with Downer EDI, who gave him instructions on where he was to work and what he was to do. Mr Talintyre admitted breach of duty of care by Downer EDI for Mr Keogh's time at Blackwater (Tcpt 61/38). The mine operated on a 24-hour basis. Mr Keogh worked four day shifts on with five days off, then five nights shifts on with four days off. He spent about 10.5 hours of each 12-hour shift operating machinery.
Mr Keogh said that along with Boggabri, Blackwater was one of the dustiest mines he worked at. He said that working with the machines released "significant dust". He worked in close vicinity to other machines which were also producing dust in the same way. He said, "I could see dust in the air outside the cabin for the entirety of the time I spent operating the machines". He also said, "the inside of my cabin was black with dust".
Mr Keogh said that in one area of the mine, the coal produced a particularly powdery dust, which meant that "the dust levels were especially fierce there". He spent a total of four weeks in this part of the mine, two weeks digging coal and two weeks removing overburden and cleaning the coal seam.
Mr Keogh said that once again the seals on the cabins of the machines were damaged and the windows would not stay closed. Dust seeped into the cabin during every shift. When he entered the cabin at the beginning of a shift, he found it "filthy from the coal dust and this would only build up further as I worked".
Mr Keogh said that he was exposed to dust even when he was on his half hour lunch breaks at the crib hut. The crib buildings were stationed a couple of hundred metres from the pit and he would often sit outside to have his break. The dust from the mine travelled to the crib huts and he breathed it in.
Mr Keogh was not provided with, or advised to wear, any respiratory protection. He was never told that exposure to coal dust or dust generally could pose a risk to his health.
Mr Keogh said that dust monitoring was performed "a handful of times" when he worked at Blackwater. The process was similar to that at Boggabri. The dust monitors were always placed in new machines, or machines where the seals had recently been replaced. He never saw any testing of the air when he worked in clouds of dust.
In his second affidavit (PX 1, Tab 2) Mr Keogh said that the level of dust created by operations at Blackwater was not as bad as Boggabri. However, the dust levels at Blackwater were worse than at Poitrel and Moorvale. Mr Keogh said that the attitude towards maintenance of the machines at Blackwater was "worse than the other mines I worked at". The maintenance of the door seals and the windows was poor. Mr Keogh gave evidence of working on excavators with defective buckets, and operating a bulldozer where the cabin mount was missing and the cabin was bouncing on metal without any cushioning while the machine was in operation.
Mr Keogh said that he could see the dust at Blackwater when he was a couple of kilometres away from the mine, while he was driving to work for the day. The crib hut was near the area where the mining was taking place, on the edge of the pit, and it was very dirty and dusty inside. When Mr Keogh finished each shift, his uniform was covered in dirt and dust.
At Blackwater Mr Keogh spent much of his time digging and removing overburden. He estimated that he dug coal about a quarter of the time he was at Blackwater. The problems with cabin seals, doors and windows were the same as at Poitrel. There were never enough water trucks at Blackwater to suppress the dust. Mr Keogh used to get out of his machine a few times during each shift to inspect the coal seam and to stretch his legs. He was then exposed to dust hanging around in the air.
In oral evidence-in-chief (Tcpt 33/29) Mr Keogh was asked to make a comparison between the dust at the various mines. He said that Blackwater was worse than Poitrel and Moorvale, but not as bad as Boggabri. He said that Boggabri was about four times dustier than Moorvale and Poitrel. He said that Blackwater was about 20% dustier than Poitrel and Moorvale.
In cross-examination by Mr Talintyre, Mr Keogh repeated that most of his time at Blackwater was spent digging overburden (Tcpt 68/16).
In cross-examination by Mr Rowles, Mr Keogh confirmed his evidence-in-chief about the dust exposure at Blackwater (Tcpt 87/17 - 88/41).

[42]

Evidence of Mr Keogh

Mr Keogh gave evidence about his work history after leaving Blackwater in October 2017 (PX 1, Tab 1). He first worked as a bulldozer operator at the Adani Mine Project. He used the dozer to clear land in preparation for a railway corridor. He worked well away from the coal mine and at no stage was he exposed to any coal dust. He did not break any rock. There was minimal dust in the cabin of the dozer, as the seals were effective and the windows stayed closed. There was no water truck, but the dust was negligible, so there was no need for one.
In April 2018 for about two weeks, Mr Keogh worked on a creek diversion project at the Rolleston Mine. He was working about one kilometre away from the mine, using a grader to build a road to the creek to allow access for machinery. There was no coal dust exposure in that employment. He was exposed to minimal dust. During his time at the Rolleston Mine there was intense rain and the earth was usually wet, so there was no dust produced. A water truck came around every hour to dampen the area.
After leaving the Rolleston Mine, Mr Keogh obtained work with Workpac at the Weipa bauxite mine in Far North Queensland. He helped to build a tailings dam. He was not exposed to any coal dust. He was digging dirt and dumping it into trucks which then deposited the dirt on the dam wall. He operated a dozer to collect mud into large piles, where it could be collected by a digger to be placed into the trucks. There was no dust while he was "mud farming". There was no rock. A water truck came around every hour to wet down the area. There was minimal dust outside his cabin while he worked at Weipa.
Mr Keogh left Weipa in around September or October 2018 and returned to work at the creek diversion project at Rolleston Mine. He was engaged by a labour hire company called Dajwood. By the time he returned, the preparation for the project was complete and work had begun on the creek diversion itself. He spent most of his time on the digger, digging soil which was dumped into a stockpile. He deposited soil into dump trucks which took it to the stockpile. He sometimes operated a dozer to remove spoil left by the bucket. There was no rock.
Mr Keogh said that this was not a dusty environment. There was some airborne dust produced when the bucket on the digger or the blade on the dozer contacted the ground but "it was minimal". A water truck came around once an hour to suppress the dust which was generated. The cabin of his machinery had effective seals and working windows. Mr Keogh worked at the Rolleston Mine until around 21 October 2018.
In cross-examination by Mr Talintyre, Mr Keogh confirmed that when he worked for Dajwood, he was not digging coal. He said he was working on the creek diversion (Tcpt 67/27).

[45]

Liability: Is the Damage Divisible or Indivisible?

As recited above, my findings on liability are: 1. CPB is liable in negligence in relation to Poitrel. 2. CPB is liable in negligence in relation to Moorvale. 3. Campbell is liable in negligence in relation to Moorvale. 4. Downer EDI is liable in negligence in relation to Boggabri. 5. Downer Regional is liable in negligence in relation to Boggabri. 6. Downer EDI is liable in negligence in relation to Blackwater.
Mr Tzouganatos submitted that the damage and loss caused by the Mr Keogh's injuries, both lung damage and psychiatric injury, are indivisible. All defendants submitted that the damage was divisible.
Mr Tzouganatos referred (MFI 8, par 191) to the English case of Thompson v Smiths Shiprepairers Ltd [1984] QB 405 at 440 (Thompson). This was an industrial deafness case. Men who had worked in shipyards in the United Kingdom for over 40 years developed industrial deafness. Part of their deafness developed in the 20 years before hearing protection became available. Even after hearing protection became available, no steps were taken to guard against hearing loss. The defendant employers were found not liable for the first 20 years of hearing loss but liable for the second 20 years of hearing loss. Thus, there had to be some apportionment so that the employers were only paying damages for the years in which they were negligent.
The decision is that of Mustill J sitting in the Queen's Bench Division. The plaintiffs relied upon the principle of law stated by Devlin LJ in Dingle v Associated Newspapers Ltd [1961] 2 QB 163 at 188 (Dingle): "Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts have also been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for the total compensation from anyone whose act has been a cause of his injury."
Mustill J also referred to the following statement by Devlin LJ (at p 189): "If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law."
Dealing with industrial deafness, Mustill J said (at p 440H): "This condition is not the direct product of a group of acts, not necessarily simultaneous, but all converging to bring about one occurrence of damage. Rather, it is the culmination of a progression, the individual stages of which were each brought about by the separate acts of the person sued, or (as the case may be) the separate non-faulty and faulty acts of the only defendant. In my judgment, the principle stated by Devlin L.J. does not apply to this kind of case."
Mustill J said (at p 443D): "The defendants as well as the plaintiffs are entitled to a just result. If we know - and we do know, for by the end of the case it was no longer seriously in dispute - that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position. The whole exercise of assessing damages is shot through with imprecision."
Mustill J said (at p 443H-444A): "I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that this court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such."
Mr Tzouganatos relied (MFI 8, par 191) upon the discussion of divisible and indivisible damage in Thompson. At p 440 indivisible damage was described by Mustill J as "the direct product of a group of acts, not necessarily simultaneous, but all converging about one occurrence of damage". Divisible damage was said to be "the culmination of a progression, the individual stages of which were each brought about by the separate acts of the persons sued".
Mr Tzouganatos relied upon (MFI 1, par 192) the "unchallenged opinion" of Dr Brown and Dr Edwards that Mr Keogh's coal mine dust lung disease was indivisible. These opinions are set out below. The submission was that each exposure materially contributed to the total load of silica and coal dust which was necessary to bring about the diagnosis in Mr Keogh. A threshold level of cumulative exposure was necessary before the injury could occur.
While there was no challenge to those opinions, nor was there any explanation by Dr Brown or Dr Edwards what they meant by the words, "indivisible" and "divisible". Doctors, of course, are not concerned with the legal attribution of responsibility for damage. They are presented with a patient who has symptoms. They take into account the history and the clinical picture, and they reach a diagnosis. Dr Brown and Dr Edwards were in agreement that there was a threshold level of exposure necessary before injury could occur. So far as they understood Mr Keogh's history, each significant exposure at a coal mine had contributed a substantial proportion of the silica dust and coal dust which was inhaled and retained in Mr Keogh's lungs. The total load of silica and coal dust in the lungs led to the coal mine dust lung diseases. It is clear that both Mr Edwards and Dr Brown were speaking of causation when they expressed the view that the disease was indivisible. That of course is not the legal test, which is whether the damage is divisible, not whether the contribution to causation of the damage is divisible.
All of the defendants submitted that the coal mine dust lung diseases were divisible and not indivisible. Three defendants pleaded that any damage was divisible: CPB Further Amended Defence par 16; Campbell Further Amended Defence par 16; Downer EDI Further Amended Defence par 18. Downer Regional did not plead this issue, but Mr Rowles made it plain in submissions that his client also asserted that the damage was divisible.
Mr Talintyre submitted (MFI 21, par 29) that the cumulative effects of the inhalation of coal and silica dusts are "analogous to the cumulative effects of the inhalation of asbestos fibres in the development of asbestosis (which is treated by the Tribunal as a divisible injury)". Mr Talintyre referred in his submissions (MFI 21, par 34) to the decision of Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [32]-[34] (Ghaleb). This case is considered below.

[46]

Respiratory Damage: Principles and Authorities

Many cases over many years in the Tribunal have decided that silicosis (a form of pneumoconiosis caused by exposure to silica) and asbestosis (a form of pneumoconiosis caused by exposure to asbestos) are divisible injuries. Because coal workers pneumoconiosis and mixed dust pneumoconiosis are forms of pneumoconiosis, prior decisions in the Tribunal in relation to other forms of pneumoconiosis suggest that all of the coal mine dust lung diseases suffered by Mr Keogh involve divisible damage.
In Mohr v Berrigan Quarries Pty Ltd [1995] NSWDDT 2 (Mohr) Judge Johns considered a case where consecutive employers had failed to take preventative measures, thus exposing a plaintiff to silica dust which caused or materially contributed to the plaintiff developing silicosis.
Judge Johns referred to the decision of Justice Mustill in Thompson, and to the reference in Thompson to the decision in Dingle. Judge Johns reviewed the medical evidence. Dr Joseph gave evidence that all exposures contributed to the onset of silicosis. Silicosis was a progressive disease that could take many years to manifest itself. The more silica a person inhaled, the greater the probability that that person will develop silicosis. Dr Stephens indicated that each individual silicic nodule is a separate assault on the lung, in a similar way to a separate blow being struck and injuring a different position in the body.
The conclusion of Judge Johns was as follows: "It seems to me clear that this disease is the culmination of a progression, the individual stages of which have been brought about by separate exposures and in those circumstances it is my view that it cannot clearly be said to be the same damage. I therefore conclude that the defendants are consecutive tortfeasors, each being liable for the consequences of their wrongful act in damages."
Judge Johns found that he was required to compare the parties' relative culpability in causing the damage. Where damages are to be assessed against two successive tortfeasors at the same time, both awards together should not be less than the total loss suffered by the plaintiff. Computation should start from an assessment of that total loss, citing Mustill J in Thompson at p 450.
Judge Johns assessed general damages against the second, third and fifth defendants (which had common representation) in the amount of $35,000. He separately assessed general damages against the fourth defendant in the amount of $15,000. Separate judgments were entered for the plaintiff against those parties.
The decision of Judge Johns, to the effect that silicosis is a divisible form of damage, was followed by Judge Duck in Agresta v Sydney Water Corporation [2004] NSWDDT 8. At [49] Judge Duck said: "The plaintiff will be entitled to succeed against both defendants. They will be consecutive tort feasors, each responsible for the damage done by it. In this regard see Mohr v Berrigan Quarry Pty Limited (In Liquidation) & others (1995) 11 NSWCCR 355. That was a silicosis case in which Johns J discussed the relevant principles at length. I gladly acknowledge and accept the guidance that his judgment offers. In conformity with the approach the judge adopted in that case I propose to assess the entitlement that the plaintiff has to damages and then to apportion responsibility for each of the defendants concerned."
A much earlier decision of the Tribunal given by President O'Meally in Katidis v Meggitt Overseas Ltd (No. 2) [1995] NSWDDT 1 (Katidis) was concerned with the assessment of damages for mesothelioma. The President found that mesothelioma was "a disorder quite distinct from asbestosis and other fibrosis-induced diseases caused by exposure to fibrosis-inducing substances, which produce increasing fibrosis with continued exposure". The President found that mesothelioma was not such a disease, because it was not the culmination of a progression or accumulative process such as occurs in the case of asbestosis or silicosis.
The decision of the President in Katidis, in so far as it referred to silicosis and asbestosis, was obiter, but was referred to with approval by Judge Johns in Mohr.
Many decisions in the Tribunal have dealt with another form of pneumoconiosis, being asbestosis. In Reilly v Malabar Electric Pty Ltd [2011] NSWDDT 9 Judge Kearns found that asbestosis is a dose-related condition. This meant that a person must be exposed to a significant quantity of asbestos before he could be considered to have contracted asbestosis.
At [96] Judge Kearns said: "Asbestosis is a divisible condition. In the context of this case, this means that each defendant is liable only to the extent of the damage caused by that defendant's tort. It is necessary to determine the extent to which the Housing Commission and the State caused injury and damage to Mr Reilly. There may be many possible factors that could come into the determinations. This case, however, was conducted on the basis that one factor only had to be considered. That factor was the period of time over which Mr Reilly did work for each defendant in comparison to his total period of exposure to asbestos which caused his condition."
Mr Talintyre (DX 21, par 34) cited the decision of the Court of Appeal in Ghaleb, which was concerned with asbestos-related pleural disease (ARPD). Ipp JA said at [32]-[34]: "32 The essence of the term 'divisible disease' is that it connotes a disease that increases in severity through an ongoing process of successive events that inflict harm on the victim. Each infliction of harm is separate and independent of the harm that has gone before. 33 A well-known example of a divisible disease is a hearing impediment caused by exposure to excessive noise over a lengthy, continuous period where each successive exposure to noise separately increases the hearing loss. 34 In the case of ARPD, the disease is the consequence of inhaling asbestos fibre in circumstances where each successive inhalation of asbestos inflicts a further and separate form of harm on the victim. As each infliction of harm is an independent event, where ARPD has cumulatively been brought about by different tortfeasors over different periods, each tortfeasor is separately liable for the separate damage each has caused. Such tortfeasors are not jointly, concurrently or severally liable to the victim. The damage for which each is liable has to be separately proved and separately assessed."

[47]

Respiratory Damage: Consideration

The above authorities lead me to the conclusion that all of the coal mine dust lung diseases suffered by Mr Keogh constitute divisible respiratory damage. Each inhalation of coal dust or silica dust is a separate infliction of harm and an independent event, where the diseases have cumulatively been brought about by different tortfeasors over different periods, to adopt the formulation of Ipp JA. Each tortfeasor is separately liable for the separate damage each has caused. The damage for which each is liable must be separately proved and separately assessed.
In the case of silicosis, decisions of long-standing in the Tribunal have found that this disease results in divisible damage, so that each tortfeasor which has made a contribution to the creation of the disease must have damages separately assessed. I follow those decisions of the Tribunal, not just as a matter of judicial comity, but because I regard them as undoubtedly correct.
There is no decision to which I have been referred concerning whether or not CWP constitutes divisible or indivisible damage. However, CWP is but one species of pneumoconiosis. The other types cited in "Black lung, white lies" (PX 17) are silicosis and asbestosis. Asbestosis is a disease which has long been regarded (in my view correctly) as a divisible condition.
In the case of both silicosis and asbestosis, there needs to be a threshold dose of dust before the disease is triggered. Once the disease is established, each successive tortfeasor has made its own contribution to the damage and damages payable by each successive tortfeasor must be separately assessed. CWP is also a disease which has a threshold level of exposure, and I find that it too constitutes divisible damage, requiring me to separately assess damages for all coal mine dust lung diseases acquired by Mr Keogh separately against each successive tortfeasor. That will involve consideration of the length of time during which Mr Keogh was exposed to dust and the intensity of the dust exposure during that time. These are matters in relation to which findings of fact are recorded above.

[48]

Psychiatric Damage: Principles and Authorities

The issue of whether psychiatric injury is divisible or indivisible was considered by the England and Wales Court of Appeal (Civil Division) in BAE Systems (Operations) Ltd v Konczac [2017] EWCA Civ 118 (Konczac). The leading judgment is that of Underhill LJ.
His Lordship said at [58] that one well-recognised type of case where there is a rational basis for an objective apportionment is where an industrial injury becomes worse as a result of exposures over a long period, for only part of which the defendant employer is legally responsible. He gave the examples of noise-induced hearing loss and asbestosis.
Underhill LJ referred at [67] to the decision of Mustill J in Thompson, referring to the passage at pp 443D-444A, where it was stressed that one should look to the evidence to see whether liability could be apportioned.
Underhill LJ said at [71]: "What is therefore required in any case of this character is that the Tribunal should identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer's wrong and a part which is not so caused. I would emphasise, because the distinction is easily overlooked, that the exercise is concerned not with the divisibility of the causative contribution but with the divisibility of the harm. In other words, the question is whether the Tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong; not whether it can assess the degree to which the wrong caused the harm."
At [72] Underhill LJ said that the court should seek to find a rational basis for distinguishing between a part of the illness which is due to the employer's wrong and a part which is due to other causes, but whether that is possible will depend on the facts and the evidence. If there is no such basis, then the injury will indeed be "truly indivisible", and principle requires that the claimant is compensated for the whole of the injury.
While Konczac is authority in England for the proposition that psychiatric injury may be divisible, depending upon the evidence, there seems to be only one mention of that decision in Australia. In BB v Helena College Council [2021] WADC 42, the following is said at [165], citing Konczac: "I accept the defendant's submission that these various psychiatric disorders should be regarded as a single indivisible injury. The essential feature of a single indivisible injury is that there is no rational basis for an objective apportionment of causative responsibility for the injury."
In DC v New South Wales [2016] NSWCA 198 (DC), the Court of Appeal had to consider whether psychiatric harm could be apportioned between a non-tortious cause and a tortious cause. Two young girls were sexually abused by their stepfather. It was only after some years of abuse that the behaviour of the stepfather was reported to the government department which had a responsibility to protect the girls. The primary judge made a contingent finding that any award of damages would be reduced by 70% to reflect the psychiatric harm caused by the stepfather before the State breached its duty. This left 30% of the harm apportioned to the State.
The trial judge had found that the harm suffered by the two girls was indivisible. However, the trial judge made the provisional finding as to apportionment, in case that decision was found to be wrong on appeal.
The Court of Appeal said at [174] that all of the abuse over the whole period of the stepfather's offending had caused the psychiatric condition. The Court of Appeal (by majority) found that damages should be apportioned as provisionally assessed by the trial judge. Thus, the State was only liable for 30% of the psychiatric harm, being the harm that occurred after the Department was notified of the abuse committed by the stepfather.
In Qantas Airways Ltd v Lisica [2007] NSWCA 371 (Lisica), a worker suffered an injury due to the negligence of the employer and also developed a disabling psychiatric injury. There were two causes of the psychiatric condition, being a marriage breakdown and the workplace injury. Damages were reduced on appeal as the Court of Appeal considered at [63] that there should be a reduction in the award of non-economic loss to take account of the effects of that part of the psychiatric injury not attributable to the employer's negligence.
Both DC and Lisica are decisions concerning apportionment between a non-tortious cause and a tortious cause. In both cases, there was evidence which enabled the court to come to a view as to what part of the psychiatric damage had resulted from each cause.

[49]

Psychiatric Damage: Consideration

Mr Tzouganatos submitted that the psychiatric injury was indivisible. All defendants submitted that the psychiatric injury was divisible. On an intuitive view, there is much force in the submission that the psychiatric injury is indivisible. Mr Keogh was fine psychiatrically (subject to a long-standing tendency to depression which was well controlled by medication) until he received his diagnosis of CWP and was prevented from working in his chosen field. His psychiatric deterioration was rapid after that event. However, the alternate view is also attractive. If each defendant has separately contributed to the respiratory diseases, as found above, and those diseases have caused Mr Keogh to deteriorate in psychiatric terms, then there is a rational basis for apportioning responsibility for the psychiatric condition and not just the respiratory conditions.
Dr Likely, psychiatrist, said (PX 1, Tab 16, p 163) that the depression has been materially contributed to by Mr Keogh's exposure to dust and diagnosis with respiratory injury. He said the same at PX 1, Tab 21, p 189.
Dr Chalk, psychiatrist, diagnosed Mr Keogh with an adjustment disorder at DX 5, Tab 20, p 11 and DX 5, Tab 22, p 13. The Diagnostic and Statistical Manual of Mental Disorders, 5th ed says that an adjustment disorder is the development of emotional or behavioural symptoms in response to an identifiable stressor, occurring within three months of the onset of the stressor. This was certainly the case with Mr Keogh.
I see no distinction in principle between the approach in DC and in Lisica to this case where all causes of the psychiatric injury are tortious. There is evidence in the case which enables a rational apportionment to be made of the psychiatric damage. That psychiatric injury has flowed from the development of the coal mine dust lung diseases. Each defendant caused physical damage in the proportions identified below, and thus each defendant has caused the psychiatric damage in the same proportions.
To take a different approach would present several difficulties. Firstly, if the respiratory conditions are regarded as divisible but the psychiatric injury is indivisible, that would require separate assessments to be made of damages for the physical injuries as opposed to the psychiatric injuries. The damages for the physical injuries would be apportioned but the damages for the psychiatric injuries would not be apportioned.
The second difficulty presented would be that it is simply illogical for the court to make a finding that each defendant has caused a particular percentage of the lung injury, but when the psychiatric injury flows directly from the lung injury, somehow that same proportion should not be applied.
To return to the English decision in Konczac, and to its reliance on the earlier decision in Thompson, the Tribunal must identify a rational basis on which the harm suffered can be apportioned between wrongdoers. As recited above, Dr Likely said that the depression had been materially contributed to by exposure to dust and diagnosis with respiratory injury. The exposure to dust can be rationally apportioned on the evidence. Dr Chalk diagnosed an adjustment disorder, which is a condition developed in response to an identifiable stressor. The stressor in this case is the coal mine dust lung diseases, and those diseases in turn have been caused by the apportionable successive torts of the various defendants.
Because there is evidence to enable a rational basis to be found for apportioning the psychiatric injury, I find that the psychiatric injury, just like the respiratory damage, constitutes divisible disease.

[50]

Apportionment: Findings of Fact

I make the following findings of fact to attribute to each defendant a percentage of responsibility for all of Mr Keogh's injuries and disabilities. I keep in mind the words of Underhill LJ cited above, that "the whole exercise of assessing damages is shot through with imprecision". In assessing responsibility for damage, I will not wield too broad a brush, but I will measure time at each mine in months not days and calculate percentages of responsibility to one decimal place.
I set out below in table format my findings of fact, taking into account time spent at each mine. In months, the time at each mine was: 1. Poitrel - 46 months. 2. Moorvale - 13 months (2 + 11). 3. Boggabri - 21 months. 4. Blackwater - 15 months.
I also take into account the level of dust exposure at each mine. In this regard I use the comparisons of dust levels given by Mr Keogh, which I accept. To summarise: 1. The levels of dust at Poitrel and Moorvale were about the same, so I have allocated an "Exposure Weighting" to those mines of "1". 2. Boggabri was four times as dusty as Poitrel and Moorvale, so its "Exposure Weighting" is "4". 3. Blackwater was 20% dustier than Poitrel and Moorvale, so its "Exposure Rating" is "1.2".
There is then a column for "Responsibility", which is a figure reached by multiplying the number of months by the "Exposure Weighting".
The final column converts the "Responsibility" figure to a percentage. The total of the units in the "Responsibility" column is 161. For each mine the numerator is the number in the "Responsibility" column and the denominator is 161, expressed as a percentage.
The table is as follows: MINE MONTHS EXPOSURE WEIGHTING RESPONSIBILITY % Poitrel 46 1 46 28.5% Moorvale 13 1 13 8.1% Boggabri 21 4 84 52.2% Blackwater 15 1.2 18 11.2% TOTALS 96 - 161 100%

[53]

Quantum: Medical Issues

Putting to one side for the moment the different statutory provisions in Queensland and New South Wales modifying the assessment of damages, the quantum issues raised by the defendants are set out below. My findings upon those issues are also set out.
The quantum medical issues are as follows, by reference to numbered paragraphs in the Further Amended Defence of CPB (noting that Campbell and Downer EDI pleaded the same quantum issues): 1. The quantity of coal dust inhaled by Mr Keogh in the course of his employment at Poitrel was insufficient to cause or contribute to him developing lung disease (par 11(b)(iii)). I reject this contention, as there is no medical support for it. Dr Edwards and Dr Brown were agreed to the contrary. Their evidence is discussed below. 2. The quantity of coal dust inhaled by Mr Keogh in the course of his employment at Moorvale was insufficient to cause or contribute to Mr Keogh developing lung disease (par 11(b)(iv)). I reject this contention, as there is no medical support for it. Dr Edwards and Dr Brown were agreed to the contrary. Their evidence is discussed below. 3. Mr Keogh does not suffer lung disease as a consequence of the inhalation of coal dust, whether in the course of his employment at Poitrel or Moorvale (par 11(b)(v)). I reject this contention, as there is no medical support for it. Dr Edwards and Dr Brown were agreed to the contrary. Their evidence is discussed below. 4. Mr Keogh's COPD is solely caused by his history of smoking at least 25 cigarettes per day for more than 28 years and has not been caused or contributed to by any occupational inhalation of dust (par 11(b)(vi)). The smoking issue is separately considered below. 5. Mr Keogh does not suffer from coal dust pneumoconiosis (par 11(b)(vii)). I reject this contention, as there is no medical support for it. Dr Edwards and Dr Brown were agreed to the contrary. Their evidence is discussed below. 6. If Mr Keogh suffers from mixed dust pneumoconiosis, silicosis and/or emphysema, then those conditions were not caused by the inhalation of dust at Poitrel or Moorvale but were caused by Mr Keogh's inhalation of silica dust while working in Western Australia (par 11(b)(viii)). I reject this contention because of my findings of fact recorded above in relation to work in Western Australia. 7. Mr Keogh does not suffer adjustment disorder or depressive disorder as a consequence of suffering lung disease (par 11(b)(ix)). I reject this contention, as there is no medical support for it. Dr Likely and Dr Chalk were agreed to the contrary. Their evidence is discussed below. 8. Any adjustment disorder or other psychiatric disorder from which Mr Keogh suffers is long-standing and has afflicted Mr Keogh for more than 25 years (par 11(b)(x)). I reject the contention that Mr Keogh's long-standing feelings of depression were in any way disabling, as there is no medical support for such a contention. Dr Likely and Dr Chalk were agreed to the contrary. Their evidence is discussed below. 9. Any psychiatric disorder suffered by Mr Keogh is a consequence of: a long-standing depressive disorder; Mr Keogh's personality type; Mr Keogh's misdiagnosis with coal dust pneumoconiosis; the termination of Mr Keogh's employment by Dajwood when he remained fit to work; and Mr Keogh's erroneous perception that he was unable to return to any employment (par 14(e)). I reject this contention, as there are no such facts established by the evidence. Further, there is no medical support for such a theory. Dr Likely and Dr Chalk were agreed to the contrary. Their evidence is discussed below. 10. Any shortness of breath, lethargy, disturbed sleep or other symptoms were not caused or contributed to by the inhalation of coal dust at Poitrel or Moorvale, but are the consequences of Mr Keogh's pre-existing psychiatric disorder and are the consequence of lung disease secondary to smoking and the inhalation of silica dust while employed in Western Australia (par 14(f)). The smoking issue is considered separately below. There is no medical support for the balance of the proposition, concerning either a psychiatric disorder or silica dust. 11. Mr Keogh has no restriction of his capacity to work (par 14(g)). I reject this contention, as there is no medical support for it. Dr Edwards, Dr Brown, Dr Likely and Dr Chalk were agreed to the contrary. Their evidence is discussed below. 12. Mr Keogh has failed to mitigate his loss as: he has an unrestricted capacity to work; he has made a voluntary decision to cease work when he is fit to do so; he has failed to participate in suitable duties programmes arranged for him by WorkCover Queensland; and he has failed to comply with recommendations as to treatment (par 15). The first and second propositions are rejected, as the evidence is to the contrary. The third and fourth propositions are considered separately below.
In its Defence, Downer Regional did not raise any quantum issues, except for the statutory provisions modifying the assessment of damages, which are dealt with separately below.

[54]

First Affidavit of Mr Keogh

Mr Keogh was working as a plant operator, without any apparent limitations, until he was diagnosed with his respiratory conditions on 22 October 2018. His description of the events leading up to his diagnosis, and the consequences of his diagnosis are to be found in PX 1, Tab 1, pars 189-220.
On 12 March 2018 Mr Keogh saw his local general practitioner Dr Rehan Shah for a "Section 4 Medical Clearance". Mr Keogh had undergone an x-ray a few days before this appointment. Dr Shah advised him there were some abnormalities on the scan which needed further investigating. Over the next few months further testing was carried out, including more x-rays and a CT scan of his chest. Mr Keogh was referred to a respiratory physician Dr Edwards, who he saw in August 2018. Dr Edwards initially did not think that Mr Keogh had any dust-related disease, but later said that he did have a dust-induced lung injury. Dr Shah told Mr Keogh of this diagnosis when Mr Keogh went back to Dr Shah on 22 October 2018.
Mr Keogh sent his Section 4 documents to his employer Dajwood and he received a phone call asking him not to come into work. On 13 December 2018 Mr Keogh received a further phone call from Dajwood and he was told that Dajwood was letting him go. He said he was "devastated".
Mr Keogh applied for WorkCover Queensland compensation in February 2019. Dr Shah had certified that Mr Keogh was able to return to work, providing that his exposure to dust was kept below a certain level. Mr Keogh had given this certificate to Dajwood, but they would not let him return to their site. Mr Keogh said, "I was desperate to go back to work, so Dr Shah amended the next certificate to say that I just needed to have personal dust monitoring performed within three months of me going back to work".
Mr Keogh then went to see Dr Ian Brown, another respiratory specialist. Mr Keogh told Dr Brown that he was desperate to go back to work, so Dr Brown cleared him to return to work "with very strict rules in place, including avoiding all dust".
In the financial year before his diagnosis, Mr Keogh was earning an average weekly wage of $1,415.04.
After receiving the diagnosis and losing his job, and the income that came with it, Mr Keogh suffered a lot of stress. He had little experience other than being a machine operator in mines, where he had worked since 2004. On 13 November 2018 Mr Keogh was at home and the situation "became too much". He worried that his disease would mean that he would never be able to return to the mining industry. He said, "I loved my job and was reliant on the income it brought in". Mr Keogh knew he was in danger of suicide and he called a friend, Donna. She looked after him that evening to make sure that he was okay. On 29 November 2018 Mr Keogh had "another breakdown" and he called Dr Shah. Dr Shah sent an ambulance which took Mr Keogh to Mackay Base Hospital. He was released from hospital later that night.
On 15 December 2018, a couple of days after Dajwood had told him that his job was no longer available to him, Mr Keogh told his friend Donna that he was contemplating suicide when his money ran out. Donna called Mr Keogh's mother. After those episodes, his psychiatric symptoms stabilised, and he felt somewhat better when WorkCover Queensland agreed to pay him weekly benefits. Before this he had been relying on income protection insurance to pay his bills. He started seeing a psychologist, Ms Caroline Ritchie, and a psychiatrist, Dr Rana.
Since December 2018 Mr Keogh has struggled with his mental health. He feels flat a lot of the time and does not have the motivation to do anything. His appetite is poor and he usually only eats one meal per day. Sometimes he goes for days at a time without eating. He has neglected his personal care and hygiene and at times goes weeks without having a shower. He feels anxious and worried and struggles with concentration. He has become forgetful and disorganised. His sleep has changed for the worse since the diagnosis.
Mr Keogh said that around Easter 2021 (he later corrected this to 2022) he stubbed his toe quite badly and he could not find the motivation to get medical attention. The toe eventually had to be amputated.
Mr Keogh admitted that he had struggled with mental health issues for all of his adult life. He had managed these issues by sometimes taking a day off work, and by taking medication.
In December 2020 Mr Keogh obtained a job with a company called McMahons Ltd operating bulldozers in Brisbane to build a golf course. He could not cope with the technology involved in this work as he could not concentrate. He was constantly confused and was calling his boss for help. Before his diagnosis, Mr Keogh said that learning a new system would have been a breeze. He left the job after three weeks because he could not cope with the new technology which was causing him a lot of anxiety and confusion. His failure at that job impacted him mentally. Mr Keogh said that this failure took him to a very dark place. He has always worked and taken pride in doing a good job.
Mr Keogh put his house in Mackay on the market in July 2021 and he moved to Horsham in Victoria to live with his mother. By the time of his first affidavit Mr Keogh had lived with his mother in Horsham for 18 months. He was still struggling with lack of motivation, concentration and generally feeling down.
From April to August 2022 Mr Keogh worked as a taxi driver in Horsham. He did not enjoy the work, as "I do not have a lot of patience for people". In August 2022 Mr Keogh obtained a job as a machinery operator with HED Industries. He was operating an excavator. He left this job in November 2022 because it was a poorly run, inefficient workplace. He felt frustrated and on edge. The work he was doing produced dust which he had to avoid.
After leaving HED Industries, Mr Keogh did not work for a few months and found that his mental health was deteriorating. In January 2023 Mr Keogh obtained a job with Garraway Earthmoving, rehabilitating a tailings dam at an old mineral sands mine near Horsham. He was required to undergo a medical examination before he started that job. The bulldozer he was operating was a brand-new machine. It had only four hours of use when Mr Keogh started. He still found that dust got into the cabin of his machinery and he began to worry about the dust levels. Mr Keogh hoped that that job would be safe for him but said, "[i]t clearly wasn't".
Mr Keogh said that he was also struggling with his mental health at work and the management style of his supervisors. His concerns about his mental state and about the dust conditions at work led to his resignation on 5 April 2023. Mr Keogh concluded his first affidavit as follows: "I wish I did not have lung disease. Being a 'dusted' coal miner is like having a death sentence in the industry."

[55]

Second Affidavit of Mr Keogh

Mr Keogh dealt with the effects of his diseases in PX1, Tab 2, pars 139-184.
Mr Keogh raised complaint about the way he had been treated by WorkCover Queensland when he applied for compensation. He had the impression that he was being talked down to and that WorkCover Queensland was accusing him of not wanting to work. He said this was not true at all. After a particular conversation with WorkCover Queensland, he took a piece of rope and tied it to a steel beam in his shed. He did not go through with this, but "I came close". That piece of rope stayed hanging in the shed until he sold the house and moved out in mid-2021. Whenever he went into the shed over the intervening years, he saw it hanging there and thought about the way he had been treated by WorkCover Queensland.
Mr Keogh also raised complaint about how he was treated by two rehabilitation providers who saw him at the request of WorkCover Queensland. He said that by the time he saw them he had stopped eating and even showering. His house was a complete mess. He said he could not get motivated to do anything. He used to think about the rope in the shed.
Mr Keogh gave some more detail about the amputation of his toe. He said that this occurred around Easter 2022, and that the reference to Easter 2021 in his first affidavit was an error. After Mr Keogh returned to Horsham in late 2021, his sister Cindy, who is a nurse, helped him to get a diagnosis. Doctors found that he had a clogged artery in the leg. On 3 November 2021 Mr Keogh underwent a right superficial femoral artery bypass. He recovered well. Mr Keogh said that he no longer has any physical restrictions or pain as a result of the toe amputation or the later surgery.
In par 152 of his second affidavit Mr Keogh said the following: "I always took pride in my work, and I absolutely loved coal mining. Every night after work, I thought through what had happened that day and how I could have done things better at work; how I could be a better coal miner. In my family, work always came first and was very important. I loved coal mining and I wanted to be the best I could be."
Mr Keogh repeated his evidence that throughout 2019 and 2020 he struggled to come to grips with not being able to continue work as a miner. He felt flat and depressed. He had no motivation. Mr Keogh gave some further information concerning the sale of his house. He said that before his diagnosis he used to take care of the house and he did a lot of work on the landscaping. His house was quiet, and he had a view of the mountains around Mackay. He described it as "my sanctuary". Mr Keogh annexed to his second affidavit a series of photos of his home in Mackay, that he later sold. When Mr Keogh sold the house, he simply walked out and left a lot of his possessions there, such as a ride-on mower, a generator, tools, a television and a stereo.
Mr Keogh said that moving back in with his mother was very difficult. He had always taken care of himself, and he could not bear the thought of relying on her to put a roof over his head.
After finishing with Garraway Earthmoving in April 2023 Mr Keogh said that his mental health went downhill. He realised that he was never going to be able to be a machine operator again. In April 2023 he planned his suicide. He thought about it in detail for five or six days.
On the morning of 26 April 2023, Mr Keogh got up and spoke to his mother, who he was living with. He said to his mother "I need help". His mother said, "I know Craig, you've needed help for a long time". Mr Keogh told his mother about his suicide plan.
Mrs Keogh called Horsham Mental Health Service. She drove Mr Keogh to the Mental Health Service and tried to get him admitted. Mr Keogh told them of his plan to commit suicide. Mrs Keogh then drove her son to the Mental Health Service in Ballarat. He was admitted and stayed there for two weeks. Since his discharge on 4 May 2023 Mr Keogh has not had any psychological or psychiatric treatment but has continued to take prescribed medications, as advised. He goes to the local general practitioner for his prescriptions.
In November 2023 Mr Keogh bought a motor home. He wanted to move out of his mother's house, but he did not want to rent. He parked the motor home at his sister's property in Nhill and he lives there now.
In par 171 of his second affidavit, Mr Keogh said that he has always supported himself and did not believe in "handouts". He had not applied for Centrelink benefits. His total and permanent disability claim was accepted by an income protection insurer and he was able to access some superannuation. He had been using that money to support himself.
Mr Keogh said that he is still in a bad way physically and mentally. Every day is just the same. He wakes up every day and thinks that it is just another day without hope. He does not have any goals. He said that he struggles to get through each day. In January 2024 he bought a dog "Bella", and he said the dog keeps his mind off things and gives him something to care for.
Mr Keogh said he still thinks about suicide, but he does not have any plans. He said that he tries to take his mind off his lung disease, but things set him off and he gets very emotional. He feels that no-one understands what he is going through.
Mr Keogh said that he felt he could not cope with working again, even doing taxi driving. He said that he gave it his all and he could not do it. The medication he now takes is very strong and it makes him "feel like a zombie". He struggles with concentration and focus. He said, "some days I am just off with the fairies".
Mr Keogh has problems with short-term memory. He has to write himself notes all the time to remember to do simple things. He never needed notes before. He forgets things very easily.
Mr Keogh said that his breathlessness has become much worse over the past six years. He now struggles to walk to the mailbox and back without getting puffed. His sleep is disturbed. He sleeps a lot during the day but then struggles to sleep at nighttime. About twice a week he wakes from his sleep in a panic and feels like he cannot breathe. It feels like a plastic bag over his head. He said that this was terrifying.
Mr Keogh has tried to give up smoking many times over the years. He has tried gum and he has tried patches. He has tried a nicotine inhaler. He had not tried medication because he was told he could not take it while he was taking Aropax, which is the medication he has been taking over the long term for depression. Whenever he has tried to quit smoking he has become angry and fidgety and found that he could not keep off the cigarettes.
Mr Keogh said that he gets angry when he thinks about what has happened to him. He did not do anything wrong. Mr Keogh said, "the only thing I did was turn up to work". If Mr Keogh had been told that the dust in his cabins could harm him, then he would have worn a mask. He said that "simply put, my life has been destroyed by my lung disease".

[56]

Oral Evidence-in-Chief

In oral evidence-in chief Mr Keogh said that between starting tests in March 2018, and being informed on 22 October 2018 by Dr Shah of his diagnosis, he had not heard anything and had no idea there was any problem with his lungs or with his work (Tcpt 43/12). He said that he was shocked and in disbelief. He never went back to work with Dajwood and was told to stay at home (Tcpt 43/25). He kept ringing Dajwood and asking to go back to work, but they kept saying "no". Dajwood terminated his employment in December 2018 just before Christmas.
Mr Keogh described dealing with WorkCover Queensland as being like on a merry-go-round. WorkCover Queensland said that they would cover his medical expenses but would not cover lost wages, but Mr Keogh could not go back to work (Tcpt 44/20).
Mr Keogh was aware that Dr Brown had written a letter to WorkCover Queensland saying that Mr Keogh could only work in a zero-dust environment. Mr Keogh said that in his trade, "that is absolutely impossible" (Tcpt 45/6).
Mr Keogh said that he felt confused, because Dr Brown had written a letter saying that he could not work in an environment where there was any dust, but Dr Schneider was trying to arrange for him to do a job as an excavator operator, which would inevitably be dusty work. Mr Keogh said that he felt like he was in a washing machine (Tcpt 45/19). Mr Keogh cannot be criticised for lacking confidence in what he was being told by Dr Schneider and by WorkCover Queensland. Dr Brown had advised that he should be in a zero-dust environment, yet others were telling him to get back to work as an excavator operator. There is no such occupation as a no-dust machine operator.
Mr Keogh said that he had read the reports of Dr Edwards and Dr Brown, and that if he needed care and assistance in the future, and nursing care, then he would pay for it himself. He did not feel good about the thought of ending up in a private hospital or a public facility (Tcpt 45/42).
Mr Keogh said that nowadays his concentration was "not very good at all". As an example, he said that if he watched a movie, his attention span was only 15 or 20 minutes, and he could not follow the plot. Mr Keogh said that he does drive but after a while has to get out of the car and have a rest. He can drive for 45 minutes between Nhill and Horsham. If he gets agitated and has to control himself, then he stops and has a break. He never used to be like that (Tcpt 46/15).
Mr Keogh said that he had difficulty doing more than one thing at the same time. He also had difficulty dealing with things that had changed. He felt frustrated. He could not deal with things that were brand new. He gets confused, lost and has a panic attack. A simple job becomes quite hard (Tcpt 46/34). He was never like this before.
Mr Keogh said that for the time-being he would live in the motor home. He said that he could not care for a house and he did not know where he would end up. He had no plans. Sometimes he spends 14 hours a day in bed. Otherwise, he would just get out of bed and sit outside and watch his dog run around (Tcpt 47/10).
Mr Keogh said that he was still smoking and that he knew that smoking was not good for him. He knew that he shouldn't be doing it. Mr Keogh said that he had tried to give up smoking but the longest he had gone without a cigarette was about four days. He had tried to give up smoking about six times in the last 25 years. His hands would shake and he would be edgy and grumpy. Mr Keogh said that he would like to try again to give up smoking, but at the moment he was under a lot of stress and later on he will give it a go (Tcpt 47/23-44).
Mr Keogh said that he went off alcohol last year for five months. He said that he has basically been a heavy drinker all his life. Currently he drinks about 8 or 10 cans of VB every day. When he was working in the mines and he went back to camp or back to the pub where he was living, he would have six stubbies of beer a night. He did lose his job once in the super pit at Kalgoorlie when he was over the limit on an alcohol test before starting a shift. During a rostered week off he would drink about 18 stubbies a day and drink about half a bottle of bourbon. He would have a rest on the day before he went back to work and only have about six beers. Mr Keogh started drinking at this level when he worked in hotels well before he became a miner. Mr Keogh said that alcohol never affected his ability to operate a machine in Queensland or in New South Wales and it never stopped him going to work. He had to blow in the breathalyser every morning and he never failed a test in those States (Tcpt 48/1-32).

[57]

Cross-Examination

Mr Keogh was first cross-examined by Mr Talintyre. He was questioned about whether he would get psychological or psychiatric help from anyone for his mental health issues. His answer was (Tcpt 65/32-37): "If I could get treatment, but I have seen a lot of people that have tried to help me, and it's very hard to keep going back to doctors, if you understand, because it actually re-traumatises me every time I go as well, every time I see someone new. And what I've experienced is not much help is actually given, and where I live at the moment, it's a very small bush town, the biggest one in the area, but you're flat out getting a decent doctor there to be honest, to even get a script, let alone professional help."
I accept this evidence and find that it answers the notion that Mr Keogh should have been more pro-active in seeking mental health treatment.
Mr Keogh was cross-examined by Mr Griscti. Mr Keogh was asked about the amount of alcohol he drinks. Mr Keogh agreed that excessive drinking can be harmful to his health. He said that he had received medical advice from time to time to cut down on his drinking. Mr Keogh said that he was probably drinking half the amount now compared to what he drank when he was doing mining work. He was still drinking daily (Tcpt 82/18-32).
Mr Griscti also asked Mr Keogh about smoking and his attempts to give up. Mr Keogh said that he would smoke about 30 cigarettes a day. Mr Griscti asked whether, taking into account drinking and smoking, Mr Keogh agreed that he had a tendency to fail to act in the best interests of his health. Mr Keogh agreed and said it was not good for him (Tcpt 82/40).
Mr Keogh was cross-examined by Mr Rowles. Mr Rowles asked him whether, when he was doing taxi work, Mr Keogh found that getting out of the house and doing work was beneficial to him. Mr Keogh said that it was good to be around people. He did not accept that he could do that work at the present time. When asked why not, Mr Keogh said (Tcpt 98/41-44): "I'd be a risk to myself and others if I was driving a cab for 12 hours a shift, or four hours, or five hours a shift cause you can't just pull over and stop. I've got to have breaks, and I've got to take baby steps with everything I do now, which, yes, I'm not real happy with."
Mr Rowles suggested to Mr Keogh that apart from the fact that he could no longer work as a machine operator, his lifestyle was much the same now as it was when he was working. Mr Keogh disagreed. When asked to say how his life was different now compared to when he was working in the mines, he gave the following answer (Tcpt 99/3-8): "Well, we'll start right off. Right. I no longer can walk for very far. All right. I'm 52. I can't do that. I can't concentrate like I used to. I have a severe mental problem, which I'm aware of. I used to have depression. I think it's right at the max at the moment, and I have a lot of issues. Basically, everything that I used to be, I'm not anymore. I'm not even the person I used to be. That's been taken from me. I've been robbed of everything. So I don't know if that answers your question. Yes."

[59]

Evidence of Dr Edwards

Dr Robert Edwards is a thoracic and sleep physician who has extensive experience in assessing patients in Queensland with coal mine dust lung disease. Three of his reports went into evidence: 1. Report dated 7 January 2019 (PX 4). 2. Report dated 9 December 2019 (PX 5). 3. Report dated 21 October 2023 (PX 1, Tab 23).
In addition, Dr Edwards gave oral evidence and was cross-examined.
The first report of Dr Edwards, dated 7 January 2019, was directed to WorkCover Queensland. Dr Edwards noted that Mr Keogh had been a smoker consuming 25 cigarettes per day and he was still smoking. He had smoked for 21 years. It was noted that Mr Keogh became breathless on very strenuous exertion but there was no limitation to his exercise capacity. On examination he was in no respiratory distress at rest. Spirometry values showed mild airway obstruction. A chest x-ray showed some pleural thickening and the CT scan of the chest showed minimal nodules, mainly in the right upper lobe.
Initially Dr Edwards did not think the changes were related to coal mine dust exposure. However, he reviewed the high-resolution CT scan of the chest with Dr Katrina Newbigin and said he was convinced that Mr Keogh did have early CWP.
Dr Edwards stated that because Mr Keogh worked in an air-conditioned cabin with minimal dust exposure, he believed it was reasonable for him to continue to work in his current occupation as a machine operator. Dr Edwards thought that Mr Keogh should have yearly lung function reviews and a high-resolution CT scan of the chest in a year's time. Dr Edwards thought that the prognosis was satisfactory, given his assumption that Mr Keogh worked in an air-conditioned cabin and did not have significant dust exposure at that time.
In his second report dated 9 December 2019, Dr Edwards basically reiterated his earlier opinion. He had not seen Mr Keogh since 22 August 2018. Dr Edwards did say "once people develop coal workers' pneumoconiosis it does not go away".
In his third report dated 21 October 2023, Dr Edwards set out a detailed history of work at various mines, and the dust exposure at those mines. Dr Edwards had been provided with the report of Dr Michael Jones, radiologist, and noted that Mr Keogh had mild diffuse CWP and mild simple silicosis, which had progressed between 2018 and 2023. Dr Edwards said that Mr Keogh also had "large airway inflammation changes and centrilobular emphysema, which are associated with both cigarette smoking and respirable dust".
Dr Edwards noted that the main functional abnormality was one of airway obstruction and was not a restrictive defect. The lung function results had slightly reduced since first recorded in 2018. There was evidence of radiological progression since 2020 and evidence of progressive reduction in lung function since June 2022.
The opinion of Dr Edwards was expressed on p 7 of his report as follows: "On my initial assessment, I was not convinced that he had mine dust lung disease but since subsequent assessments, my opinion was that he did have mine dust lung disease in the form of mine workers' pneumoconiosis and probable silicosis in addition to emphysema and mild chronic airway obstruction. Following my most recent report of Mr Keogh, my opinion was that he suffered from coal mine dust lung disease in the form of coal workers' pneumoconiosis and mild chronic airway obstruction. Therefore, I would like to confirm my opinion that he does have coal workers' coal mine dust lung disease in the form of mixed dust pneumoconiosis, chronic airway obstruction and emphysema. This has been significantly contributed to by his exposure to coal dust in his Queensland work."
Also on p 7 of the report Dr Edwards said that the diagnosis had progressed since Mr Keogh ceased work in the mining industry. Dr Edwards said that Mr Keogh's life expectancy would be reduced as a result of this progressive disease. He put the reduction at approximately five years.
On p 8 of the report Dr Edwards was asked to offer an opinion as to the likely future progression of Mr Keogh's condition. His opinion was expressed as follows: "Therefore, Mr Keogh anticipated life expectancy is 26.53 years. During Mr Keogh's remaining life expectancy, the condition is likely to slowly progress. His symptoms will get progressively worse. His functional capacity will also gradually deteriorate as follows. Currently he is performed at an ECOG level of 0, that is, he is capable of full independent activities with no limitation to his exercise capacity. I would anticipate that that he will be functioning at the ECOG of zero for 10 years. He will then move on to an ECOG level of 1 for 10 years, at a level of low dependency, being capable of almost all self-care and most domestic tasks and able to manage light property and lawn and garden maintenance. He needs assistance with more strenuous levels of activity. During which time he will be slowly deteriorating to an ECOG level 2. By that time, he will be passing onto an ECOG level of 2, with a medium level of dependence, for approximately five years. At this stage, he is likely to require some assistance with self-care and if living alone will probably need to have some sort of community support. He would be able to manage light and sedentary domestic chores but would need help in managing his property and lawn mowing et cetera. He will be up and about for more than 50% of his waking time. He will then progress to an ECOG level 3 which is high dependence, where the patient is only capable of limited self-care and confined to a chair or bed for more than 50% of his waking time. He would need added assistance in caring for himself. He will be at this level for approximately one year. He will then move into a level of complete dependence, ECOG level of 4, for six months before his demise."
It can be seen that Dr Edwards answered the question by reference to the ECOG scale. That scale was put into evidence as PX 19. Its full name is the "ECOG Performance Status Scale". The first page of PX 19 sets out the scale as follows: GRADE ECOG PERFORMANCE STATUS 0 Fully active, able to carry on all pre-disease performance without restriction. 1 Restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, eg, light housework, office work. 2 Ambulatory and capable of all selfcare but unable to carry out any work activities; up and about more than 50% of waking hours. 3 Capable of only limited selfcare, confined to bed or chair more than 50% of waking hours. 4 Completely disabled; cannot carry on any selfcare; totally confined to bed or chair. 5 Dead.

[60]

Dr Edwards noted that Mr Keogh is now retired, but he said, "he would now be unable to work in a role that exposed him to dust, given the progression of his disease".
On p 9 of the report Dr Edwards said: "In my report to WorkCover Queensland dated 7 January 2019, I opined that Mr Keogh's dust exposure had not been heavy or significant, however, on review of the enclosed documentation and in particular, Mr Keogh's affidavit, I am of the opinion that the dust exposure whilst working in the mines was both heavy and significant."
Dr Edwards gave oral evidence-in-chief. He said that accumulative exposure to mine dust was the total exposure to mine dust which occurs progressively from the time a worker starts in the industry to the time they finish work in the industry, and the larger the exposure accumulated, the more likely people are to develop coal mine dust lung disease (Tcpt 149/23).
Dr Edwards said that it is recognised that a worker needs at least a 10-year exposure to develop significant disease. There might be a massive exposure over a lesser period of time. In the coal mining industry it is usually a 10-year accumulative exposure. He agreed with the proposition that this was a threshold. He agreed with the proposition that "every exposure gets you to the point where you have enough so that you get the disease" (Tcpt 149/38-45). Dr Edwards was asked whether he had a view about whether coal dust pneumoconiosis is a divisible or an indivisible disease. He said: "I consider it to be an indivisible disease. All of the periods of exposure contribute to it, but in total. Totality. Not individually." (Tcpt 150/9-11) (Emphasis added)
Dr Edwards was not cross-examined by Mr Talintyre. He was cross-examined by Mr Griscti. Dr Edwards was asked whether his diagnosis related purely to dust exposure and did not relate to the impact of smoking. The answer of Dr Edwards was that he always considered the impact of smoking, but smoking did not cause coal mine dust lung disease. It did not cause pneumoconiosis. Smoking does cause and can contribute to emphysema and chronic airway obstruction. Dr Edwards said that coal mine dust exposure and cigarette smoking contribute equally. He said that studies have shown that one pack of cigarettes per day for a year is equivalent to one year of heavy mine dust exposure (Tcpt 153/35).
Dr Edwards was asked whether the cigarette smoking contributed to Mr Keogh's reduced life expectancy. He described it as "a very small contribution" and explained that there had been progression on the CT scan of pneumoconiosis but no evidence of progression of emphysema or airway disease (Tcpt 153/43).
There was no cross-examination by Mr Rundle.
There was cross-examination by Mr Rowles about an opinion expressed by Associate Professor McKenzie in a report dated 2 April 2024. However, that report was not admitted into evidence. In answering the question about Associate Professor McKenzie's report, Dr Edwards referred to the article "Radiological appearance of coal mine dust lung disease in Australian workers" in the Journal of Medical Imaging and Radiation Oncology published in 2018. That article was tendered as Exhibit PX 10.
I asked Dr Edwards a question about the use of the phrase "coal mine dust lung disease", and what it meant or encompassed. Dr Edwards said that mine dust causes more than just classic pneumoconiosis, being CWP and silicosis. He said that coal mine dust lung disease consists of CWP, silicosis, mixed dust pneumoconiosis, emphysema, chronic airway obstruction, chronic bronchitis and dust diffuse fibrosis. He said that coal mine dust lung disease was much more than CWP or "black lung" (Tcpt 156/30-39).

[62]

Evidence of Dr Brown

Dr Ian Brown is a retired thoracic and sleep physician. The following reports were tendered: 1. 20 August 2020 (PX 1, Tab 7). 2. 30 September 2021 (PX 1, Tab 9). 3. 26 September 2023 (PX 1, Tab 11). 4. 17 March 2024 (PX 1, Tab 13).
In addition, Dr Brown gave oral evidence and was cross-examined.
In his first report Dr Brown said that as a consequence of mine dust exposure, Mr Keogh had developed evidence of mixed dust disease on CT scanning. He had changes of COPD with mild airway obstruction on spirometry and significant impairment of lung diffusion. Dr Brown attributed the changes of COPD equally to dust exposure and the heavy smoking history. He attributed the mixed dust disease entirely to the workplace exposure. Dr Brown offered the opinion that Mr Keogh had a 20% impairment of the whole person, with 15% whole person impairment attributable to his work-related dust disease and COPD and the balance of 5% attributable to the smoking-related COPD. Dr Brown noted that Mr Keogh "had been removed from the workplace from early 2018" and had been advised not to be exposed to any coal dust or RCS. He also noted a related psychological injury with anxiety and depression requiring psychological and psychiatric support.
In his first report Dr Brown provided a scenario of potential medical and other costs. These were said to be: 1. Medical care from a general practitioner and respiratory specialists with screening tests of complex lung function, chest x-rays annually and CT scans bi-annually - $27,000. 2. Other medications including aerosol treatments, antibiotics and depression-related medications - $15,000. 3. Supplementary oxygen therapy with a home oxygen concentrator and a portable oxygen concentrator for mobilising - $10,000. 4. At least two episodes of hospitalisation to manage complications such as infection - $15,000. 5. Costs related to psychiatric care - not estimated.
Dr Brown thought that over the next 10-12 years Mr Keogh would have a period of low dependency in terms of the level of support required. There would be a gradual increase in support for activities such as lawnmowing, gardening, vacuuming and shopping. There would then be a period of five years of moderate dependency with increasing support required, including laundry, housekeeping, shopping and cooking. Dr Brown thought that Mr Keogh would then enter a period of oxygen dependence for exertional activities. A period of high dependency would follow for two to three years including total dependency over several months and palliative care for the last month or so of his life. Dr Brown did not approach this topic in his opinion by reference to the ECOG scale.
In his second report Dr Brown recorded that Mr Keogh's predominant ongoing symptom was breathlessness. At that time Mr Keogh was living at the home of his mother in Victoria. His sleep was disturbed. His weight and appetite were steady, but he remained in the obese range.
Spirometry tests showed evidence of mild to moderate airway obstruction without a significant reversible component. Dr Brown thought that the CT scan appearance suggested a diagnosis of mixed dust pneumoconiosis. This was based on the history of exposure to coal dust and silica dust in Mr Keogh's work as a plant operator in the open cut coal mines. The radiological features were consistent with mixed dust pneumoconiosis.
Dr Brown said that the interstitial changes and nodular infiltrates were due to dust exposure and not cigarette smoking. The COPD component was likely to be significantly affected by smoking. Dr Brown said that cigarette smoking had not contributed to the actual pneumoconiosis changes, but it had significantly contributed to the development of COPD. Dr Brown said that the COPD would continue to progress under the influence of continued cigarette smoking. There was a significant likelihood that life expectancy would be shortened by COPD due to cigarette smoking but there was a small component of reduced life expectancy due to pneumoconiosis.
Dr Brown said that Mr Keogh was not capable of returning to work as a plant operator where there is any potential dust exposure. He also thought that his mood disturbance would likely make it difficult for him to return to employment.
In his third report Dr Brown said that he had not changed his opinion in relation to the clinical and radiological features, which showed that Mr Keogh had CWP and simple silicosis. The most recent CT scan performed on 21 July 2023 suggested that these conditions were mildly progressive. Smoking would have contributed partly to the development of emphysema. A component of the emphysema was also directly related to pneumoconiosis as both coal dust and RCS are contributors to the development of emphysema independently of cigarette smoking. The progressive CT scan changes were attributable to the inorganic dust materials deposited in the airways.
Dr Brown thought that the major symptoms were breathlessness with continuing cough and sputum production. This was related to the underlying dust disease. As that disease progresses the breathlessness symptoms will occur at a lower level of exertion and there is likely to be a significantly increased risk of superimposed chest infection. In the later stages of disease progression Mr Keogh would become oxygen dependent for exertion. He would require several periods of hospitalisation for management of complications, particularly bronchitis and pneumonia, in the years ahead.
Dr Brown said that the additional information from the most recent CT scan and complex lung function testing indicated a degree of progression. He thought there would be a significant impact on future life expectancy and performance status.
In his fourth report, dated 17 March 2024, Dr Brown said that the updated history suggested that symptoms had been mildly progressive. There were increasing symptoms of breathlessness which affected daily activities. Mr Keogh was now breathless on showering and dressing and had difficulty walking more than 100 metres, when he was required to stop and rest. Mr Keogh managed his shopping activities by limiting his visits to the supermarket to every two or three days and carrying only one bag of groceries. There was significant sleep disruption from choking and breathlessness. By the stage of the fourth report Mr Keogh was living alone in a motor home situated on his sister's property. Dr Brown noted ongoing significant mental health issues.
Dr Brown said that cigarette smoking had not contributed to the changes of CWP or silicosis. Cigarette smoking had been heavy and significant throughout Mr Keogh's adult life and was most likely a significant contributor to emphysema. However, there was also contribution to emphysema from coal dust and RCS exposure. Dr Brown attributed 50% of the emphysema to cigarette smoking alone.
Dr Brown maintained his opinion that there was a 15% whole person impairment due to dust exposure in the workplace in Queensland. He thought that there was no significant contribution from working in Western Australia. There was a 5% whole person impairment due to cigarette smoking.
Dr Brown thought that there was a 10-year reduction in life expectancy due to coal mine dust lung disease. He said that cigarette smoking would contribute a further 5-year reduction in life expectancy.
Dr Brown said that Mr Keogh could not return to any job, including as a machine operator, where there was a risk of further dust exposure. He saw no reason why he could not work as a taxi driver or in another non-dust occupation. Dr Brown did note that Mr Keogh had ceased work as a taxi driver because of his mental health considerations. The mental health issues would also affect his ability to perform consistently in the workplace.
In oral evidence-in-chief Dr Brown said that CWP and silicosis were the results of the aggregate exposure over Mr Keogh's mining career. The total load has caused the lung disease. When asked whether the coal and silica-related injuries were divisible or indivisible, Dr Brown said: "Well, I don't think that any part of his exposure is separable or absolved from potential causation in his disease. So I would call it indivisible in the similar way that I am used to speaking about asbestos fibres, and their subsequent causation of asbestos-related lung disease." (Tcpt 175/48-176/2) (Emphasis added)
Dr Brown was cross-examined by Mr Talintyre. Dr Brown said that there was no difference in the symptoms experienced by someone diagnosed with mixed dust disease as distinct from a worker diagnosed with CWP. The same applied to silicosis. There was an overlap in the typical symptomatology between COPD and CWP.
Dr Brown agreed that there was a significant contribution to the COPD condition caused by the heavy smoking history (Tcpt 177/21). He said that there was a significant component of the COPD which is attributable to the dust disease (Tcpt 178/2). He said that continued smoking would cause further damage and smoking-related disease and that is in some way indistinguishable from the COPD of dust disease (Tcpt 178/11). However, the pattern of the emphysema was not typical of the pattern associated with smoking-related emphysema, but there was a smoking component (Tcpt 178/16).
Dr Brown was asked by Mr Talintyre whether, with Mr Keogh's smoking history and COPD alone, he may have been prevented from working in coal mines by a medical examination. Dr Brown agreed that given the smoking history and the COPD, irrespective of any dust component, it would not have been a good idea for Mr Keogh to continue working as a coal miner (Tcpt 181/42-182/2).
Dr Brown agreed that as a general medical proposition, a heavy smoking history can give rise to medical conditions that would incapacitate somebody for work. It can also give rise to medical conditions that require somebody to have personal and domestic care. Smoking is carcinogenic and can cause cancer. Dr Brown also agreed that drinking between 6 and 18 full-strength beers a day for the last 20 years was an excessive alcohol intake, amounting to chronic alcohol abuse. That alcohol intake history has the potential to reduce life expectancy, incapacitate somebody for work and give rise to medical conditions that might lead to a need for personal or domestic care. That alcohol intake history could lead to life-threatening medical conditions (Tcpt 183/23-47).
There was no cross-examination of Dr Brown by Mr Griscti, Mr Rundle or Mr Rowles.

[63]

Evidence of Dr O'Toole

Dr Robin O'Toole, occupational and environmental physician, provided a report dated 9 September 2021 (DX 6, Tab 15). He carried out a file review and answered a number of questions asked of him. His report is of limited utility as it was provided several years before the 2023 high-resolution CT scan and complex lung function tests which led Dr Edwards and Dr Brown to a definite diagnosis of progressive CWP and silicosis. No updated report was ever obtained from Dr O'Toole. Further, several of the questions which he was asked to answer were based upon a factual premise which is simply not established by the evidence. For example, question 6 asked Dr O'Toole to assume that Mr Keogh had operated diggers, dozers and graders "in which the air-conditioned cabins are airtight, with seals that do not leak". The overwhelming evidence from Mr Keogh, corroborated by the two other miners who gave lay evidence, is that this was simply not the case at any mine. Question 7 asked Dr O'Toole to assume that between 10%-20% of the time coal dust was admitted into the cabin through damaged or degraded seals. Question 8 asked him to assume that coal dust entered the cabin 50% of the time. Again, these scenarios were not established as facts by the evidence. Question 10 asked Dr O'Toole to advise on his view on the reliability of the diagnoses of CWP, mixed dust disease and emphysema. Again, the diagnoses on which Dr O'Toole was asked to comment pre-dated the later views of Dr Edwards and Dr Brown by several years.
Dr O'Toole was cross-examined by Mr Tzouganatos. He agreed that smoking causes the effects of coal and silica dust to be greater (Tcpt 218/30). Dr O'Toole was asked whether, given the synergistic effect between coal and silica dust and smoking, coal miners should have been informed about that. Dr O'Toole agreed that they should have been informed about the increased risk caused by smoking when exposed to coal and silica dust (Tcpt 219/23).
In his report Dr O'Toole had said that dust in coal mines, including coal dust, contains variable amounts of silica. Dr O'Toole agreed that if a worker is excavating coal, that means that the dust to which that worker is exposed could be a mixture of coal dust and silica dust. There is silica within the coal itself (Tcpt 220/38-47).

[64]

Evidence of Dr Likely

Dr Michael Likely is a consultant psychiatrist who provided medico-legal reports at the request of the solicitor for the plaintiff. In his first report dated 29 September 2020 (PX 9) Dr Likely recorded that Mr Keogh had experienced mood disturbance and that on most days he expressed a subjectively experienced depressed and unpleasant mood. Mr Keogh told Dr Likely that his mood was no longer depressed but he reported it as being "flat". Mr Keogh said that he was easily fatigued and had problems with concentration. He experienced anxiety, apprehension and worry for about one day per fortnight. Mr Keogh was neglecting a regular diet. He was also neglecting self-care and personal hygiene. He had not bothered to shower in a week and his house was "a pigsty" because he lacked the motivation or energy to perform activities such as vacuuming, cleaning or mopping.
Dr Likely recorded that Mr Keogh was first prescribed the psychotropic drug Paroxetine (also known by its trade name Aropax) in 1997. At that time there was an acrimonious relationship breakup. Mr Keogh punched a window and suffered severe injuries to his arm. He had been taking Aropax ever since. Mr Keogh reported that between this event and the onset of symptoms in 2018 he had been psychologically well, except for a few times when he attempted to cease Aropax. There was a strong family history of mental disorder, in that his mother, brother and eldest sister had been treated for depressive illnesses.
Mr Keogh described difficulties with his late father who was a heavy drinker and was physically violent towards Mr Keogh. On a mental state examination, Mr Keogh displayed ongoing depressive symptoms of loss, low self-worth, shame, guilt, pessimism and nihilism. He also had symptoms consistent with anxiety, being catastrophisation and negative automatic thoughts. Dr Likely diagnosed Major Depressive Disorder (partially remitted), Generalised Anxiety Disorder (partially remitted) and Persistent Depressive Disorder (in full remission). Dr Likely said that these conditions had arisen as a direct result of Mr Keogh being diagnosed with CWP. Mr Keogh was psychologically well and unencumbered by any symptoms of psychological morbidity until he was diagnosed as suffering from CWP.
Dr Likely said that Mr Keogh had been absent from work solely because of his illness and injuries from 22 October 2018. Dr Likely also thought as an "unequivocal opinion" that the symptoms of major depressive disorder and generalised anxiety disorder meant that Mr Keogh was totally and permanently incapacitated from undertaking any form of remunerative employment.
Dr Likely said: "Mr Keogh impressed me as being an extremely stoic and resilient man who derived much of his sense of self-worth and enjoyment in life from his work particularly in the mining industry. He has a deep sense of loss regarding his inability to work."
Dr Likely provided a second report dated 25 August 2021 (PX 1, Tab 16). Mr Keogh reported that his symptoms of anxiety had completely dissipated, but he had ongoing symptoms of disturbance in his mood. He was significantly depressed and dysphoric most of the day. His sleep had deteriorated since he last saw Dr Likely. There was daytime sleepiness and associated lethargy, with anergia and amotivation. Mr Keogh was neglecting self-care and personal hygiene. He had not showered for two weeks prior to being assessed by Dr Likely on 20 August 2021. Mr Keogh described ongoing cognitive problems consisting of poor attention and concentration. He said that he completely lacked self-confidence. Mr Keogh gave a history of returning to work in December 2020 with McMahons Ltd, constructing a golf course in Brisbane. The plant was computerised, and Mr Keogh said that he became confused and unproductive. He resigned from this position after about three weeks of work. There was then a deterioration in his mood and a feeling of despondency. Dr Likely recorded that there was a profound sense of loss regarding Mr Keogh's work and self-identity. Mr Keogh reported drinking six stubbies of full-strength beer per night, which Dr Likely recorded was about three times the recommended safe alcohol consumption limit under World Health Organization guidelines. Mr Keogh was tearful throughout the duration of his interview with Dr Likely. His mood was one of worsening depression. Dr Likely noted cognitive deficits with poor attention, concentration and short-term memory. Mr Keogh lost his train of thought and had to be prompted by Dr Likely in conversation.
The new diagnosis of Dr Likely was Major Depressive Disorder (Chronic, Severe). This had worsened since September 2020 although the Generalised Anxiety Disorder and the Persistent Depressive Disorder were now fully remitted.
Dr Likely said that the diagnosis of Major Depressive Disorder had been materially contributed to by Mr Keogh's dust diseases. Until the diagnosis with CWP, Mr Keogh had been psychologically well and was functioning in all spheres of life. Dr Likely said that the Major Depressive Disorder had the propensity to become chronic, severe, deeply ingrained and treatment refractory. Dr Likely thought that Mr Keogh required urgent referral to a consultant psychiatrist and a clinical psychologist. The need for treatment for depression would be indefinite. The capacity for work had been compromised by the diagnosis of Major Depressive Disorder. Dr Likely said that as long as Mr Keogh remains depressed he will be unable to procure or hold down any form of remunerative employment in the future.
Dr Likely provided a third report dated 11 October 2021 (PX 1, Tab 18). Dr Likely thought that Mr Keogh was then suffering from treatment-resistant depression. He thought that he should remain on lifelong antidepressant drugs and that his need for psychiatric treatment was likely to be lifelong. The medication was "likely to cost somewhere in the order of $300 per month". The cost of psychotherapy, which Dr Likely thought should be provided monthly by a psychologist, was "approximately $300 per session". Dr Likely said that if Mr Keogh required hospital admission for Electro-Convulsive Therapy or Transcranial Magnetic Stimulation the cost would be $20,000 for 3 weeks. Dr Likely did not offer a view as to whether such treatment would probably be required.
Dr Likely provided a fourth report dated 14 October 2021 (PX 1, Tab 20). Dr Likely said that until treatment was started, and Mr Keogh went through about 12 months of treatment, it was not possible to offer an opinion about a return to some form of employment. Because Mr Keogh had been untreated for so long, it was difficult to say how well his condition could be managed. There was a real risk that Mr Keogh would never be well enough psychologically to return to work.
Dr Likely provided a fifth report dated 27 October 2023 (PX 1, Tab 21). By then Mr Keogh was residing in a motor home located on his sister's property. He was not working. Mr Keogh gave a history of driving cabs for Horsham Taxis for six months in 2022. Mr Keogh said that he struggled with the work and that he was physically and emotionally exhausted after it. He would have two days off to sleep. He ceased this job. Subsequently Mr Keogh worked as an excavator operator from late August to November 2022 in Horsham for HDE Industries. Again, he became physically and emotionally exhausted. He ceased this job and had two months off before returning to earthmoving, this time as a bulldozer operator for another three months between January and April 2023 for Garraway Industries. This work was unsatisfactory as he was further exposed to dusty working environments.
Mr Keogh told Dr Likely that the reason for his return to work was to help his mental health as he was sick of sitting around at home. Mr Keogh was experiencing a pervasive subjectively experienced depressed mood for most of the day and on most days. His sleep was broken and unrefreshing. He was only eating once a day. Mr Keogh had acquired a Jack Russell puppy named Bella and this had provided him with some comfort.
Mr Keogh said that after he ceased work in April 2023 he became actively suicidal. On 26 April 2023 Mr Keogh was so concerned that he contacted Horsham Mental Health Service. Mr Keogh's mother conveyed him to Horsham Hospital and subsequently to Ballarat Hospital, where he was admitted on a voluntary basis to the psychiatric unit for two weeks. Mr Keogh had formulated plans for suicide. After treatment at Ballarat Hospital his symptoms had stabilised and he was no longer experiencing suicidal ideation. Mr Keogh still had difficulties with attention and concentration, poor short-term memory, and a compromised capacity to plan and organise tasks. There had been an erosion in Mr Keogh's sense of self-worth. Mr Keogh reported episodic tearfulness and over-sedation. Mr Keogh had a sense of a foreshortened future due to his respiratory conditions.
After discharge from Ballarat Hospital Mr Keogh had weekly then fortnightly follow-ups from the Horsham Mental Health Service over a two month period. At the end of that time he was discharged to the care of his general practitioner.
On a mental state examination, Mr Keogh was flat and tearful. His thought content showed prominent depressive cognitions characterised by themes of loss, hopelessness and isolation. Cognitive deficits in the areas of poor attention and concentration were apparent to Dr Likely.
Dr Likely diagnosed Major Depressive Disorder (Chronic, Severe, Treatment Resistant) and Alcohol Use Disorder.
Dr Likely said there was a clear temporal relationship between Mr Keogh's diagnosis with COPD and pneumoconiosis, his cessation of work and the consequent evolution of symptoms and major depression. Mr Keogh's capacity to work currently, and in the future, had been affected by the diagnosis of Major Depressive Disorder. Dr Likely thought that Mr Keogh would never return to any form of remunerative employment.
Dr Likely gave oral evidence and he was cross-examined. In cross-examination by Mr Talintyre, Dr Likely agreed that Mr Keogh should have been encouraged to continue treatment with a psychologist from November 2019 onwards (Tcpt 199/5). Dr Likely did say that Mr Keogh had found the psychotherapy offered by Ms Ritchie had not provided him with significant assistance (Tcpt 199/50).
Dr Likely did agree that the treatment which Mr Keogh received in 2019 and 2020 from Dr Rana and Ms Ritchie had assisted him. It had resulted in some improvement in his condition at the time (Tcpt 200/42). Dr Likely said that Mr Keogh had continued with treatment by way of prescription medication (Tcpt 201/17).
Dr Likely agreed that given Mr Keogh's history before he was diagnosed with a lung disease (in particular his prior depressive condition and use of antidepressant medication), Mr Keogh was at risk of sustaining a major depressive illness as a result of some other adverse life event (Tcpt 202/5). Dr Likely did agree that alcohol has a depressive effect, and it reduces the efficacy of psychiatric treatment for depression (Tcpt 202/50). Dr Likely thought that Mr Keogh would benefit from a targeted programme aimed at reducing his alcohol intake (Tcpt 203/49). Dr Likely agreed that a return to work would improve Mr Keogh's mental state (Tcpt 204/1).

[65]

Evidence of Dr Chalk

Dr John Chalk is a psychiatrist who was retained by WorkCover Queensland to provide medico-legal reports in relation to Mr Keogh. In his first report dated 13 September 2021 (DX 6, Tab 21) Dr Chalk reported upon an assessment conducted on 10 September 2021. Mr Keogh told Dr Chalk that he was anxious and depressed. He was not attentive to self-care, and he was only showering irregularly. Mr Keogh described difficulties with concentration.
Dr Chalk said that Mr Keogh had a long-standing depressive illness which had commenced in his mid-twenties and was initiated by a relationship breakdown. He had no ongoing psychological treatment apart from medication. His condition did not have any significant impact upon his capacity to work. This condition was not likely to have had a long-term impact upon his capacity for employment.
Dr Chalk said that in his view, Mr Keogh developed a psychiatric illness as a consequence of his dust disease. This was either a chronic adjustment disorder with depressed and anxious mood, or an aggravation of an underlying dysthymic disorder. Dr Chalk thought that the diagnosis of adjustment disorder was more appropriate. He said that there was a degree of permanency in his condition.
Dr Chalk's diagnosis was of a chronic adjustment disorder with depressed and anxious mood. From a psychiatric perspective, Dr Chalk thought at that point that Mr Keogh had the capacity to work full-time in an alternative position.
Dr Chalk's second report was dated 7 March 2024 and referred to an assessment conducted on 6 March 2024 (DX 6, Tab 22).
Dr Chalk said that the incapacity of Mr Keogh to return to his former job quite clearly led to a significant aggravation of his underlying psychiatric difficulties. The diagnosis of his disease and his inability to return to mining jobs "was the essential condition for the development of the aggravation of his previous difficulties". Dr Chalk confirmed his diagnosis of adjustment disorder. Dr Chalk also thought that the ongoing psychiatric symptoms would not preclude Mr Keogh from undertaking work as a plant operator. Dr Chalk noted employment for periods of three months on an apparent full-time basis, referring to the taxi-driving job and the plant operator job.
Dr Chalk confirmed that he did not think that Mr Keogh was incapacitated by virtue of any pre-existing condition. Dr Chalk agreed with the assessment of Dr Likely, that Mr Keogh was functioning relatively well at the time of his diagnosis and that his antidepressants had managed his condition for many years in a satisfactory fashion.
Dr Chalk was cross-examined.
Dr Chalk was asked to assume that the dust disease would progress to the point where in about 10 years time Mr Keogh would need some assistance with the activities of daily living. He was also asked to assume that thereafter it would progress so that he needed more assistance with activities of daily living, progressing to supplemental oxygen, and eventually the need for around-the-clock care and assistance. He was also asked to assume that the dust disease would progress so that Mr Keogh's life would be terminated between 5 and 10 years earlier than if he had not contracted the disease. Given those assumptions, Dr Chalk agreed with the proposition that Mr Keogh's depressive illness would deteriorate in the future and he would become more depressed (Tcpt 247/34-50).
Dr Chalk acknowledged that in the light of the fact that the physical injury was deteriorating and that this was causing problems in obtaining employment, Mr Keogh's psychiatric difficulties and depression would get worse (Tcpt 249/25). Dr Chalk thought that Mr Keogh was the kind of person who took a great deal of pride in being able to work and that the loss of his work had had a significant impact upon him (Tcpt 249/32). Dr Chalk thought that Mr Keogh had a degree of significant resilience and that he was driven and motivated to work (Tcpt 249/34). Dr Chalk thought that Mr Keogh had made reasonable efforts to try to get back into the workforce (Tcpt 249/42).
Dr Chalk agreed that on the assumption that Mr Keogh's physical and mental condition had deteriorated since he last saw him, it would be extremely difficult to maintain any kind of employment (Tcpt 251/20).

[67]

Psychiatric Issues

I accept all of the evidence of Mr Keogh concerning his psychiatric issues.
I accept all of the evidence of Dr Likely and Dr Chalk, since they are largely in agreement, although they put different diagnostic labels on Mr Keogh's condition.
I make the following findings: 1. Mr Keogh has suffered from depression for most his adult life. Mr Keogh has managed this issue by taking medication and sometimes taking a day off work. He was psychiatrically well and able to do his mining job for many years with no problems. 2. After receiving his diagnosis in October 2018 and losing his job, Mr Keogh lost his income and suffered a lot of stress. 3. By November 2018 Mr Keogh was in danger of suicide, consulting a friend, then his general practitioner, and then being admitted to Mackay Base Hospital. 4. Since December 2018 Mr Keogh has struggled further with his mental health. 5. Since that time: his motivation has been low; his appetite is poor; he has neglected his personal care and hygiene; sometimes he goes for weeks without having a shower; he feels anxious and worried; he struggles with concentration; and he has become forgetful and disorganised. 6. Mr Keogh stubbed his toe quite badly but could not find the motivation to get medical attention. The toe eventually had to be amputated. 7. In December 2020 when Mr Keogh obtained a job with McMahon Ltd, he could not cope with the new technology because his psychiatric condition meant that he could not concentrate and absorb new information. 8. From April to August 2022 Mr Keogh worked as a taxi driver in Horsham but left that work because he did not have a lot of patience for people and did not enjoy the work. 9. After leaving work as a taxi driver, Mr Keogh obtained several positions as a machine operator, but had to stop each job because there was still dust getting into his cabin and therefore the job was not safe for him. 10. Mr Keogh feels that being a "dusted" coal miner is "like having a death sentence in the industry". 11. After conflict with WorkCover Queensland, Mr Keogh considered hanging himself, but did not go through with that plan. 12. In April 2023 Mr Keogh planned to commit suicide but finally told his mother of his plan. His mother called Horsham Mental Health Service and drove him to be admitted to the Mental Health Service in Ballarat for two weeks. 13. Since that hospital admission, Mr Keogh has continued to take medication, which he has obtained on prescription through his local general practitioner. 14. Mr Keogh has never applied for Centrelink benefits and has survived thus far on a combination of payment under a permanent disability insurance policy, payments from WorkCover Queensland, and accessing some of his superannuation. 15. Mr Keogh feels that he could not cope with working again, even doing taxi driving. He takes strong medication which makes him "feel like a zombie". 16. Mr Keogh gets angry when he thinks about what has happened to him, because he did not do anything wrong himself. 17. Mr Keogh had seen practitioners for help with mental health issues, but he had not been able to obtain much assistance, as every time he has to talk about his situation it re-traumatises him. 18. I accept the opinion of Dr Likely that Mr Keogh suffers from a major depressive disorder and a generalised anxiety disorder, which mean that he is totally and permanently incapacitated from undertaking any form of remunerative employment. 19. I accept the opinion of Dr Likely that Mr Keogh is an extremely stoic and resilient man who derived much of his sense of self-worth and enjoyment in life from working in the mining industry. Further, Mr Keogh had a deep sense of loss regarding his inability to work. 20. I accept the opinion of Dr Likely that Mr Keogh is significantly depressed and dysphoric for most of the day. 21. I accept the opinion of Dr Likely that until being diagnosed with CWP, Mr Keogh had been psychologically well and was functioning in all spheres of life. 22. I accept the opinion of Dr Likely that the need for treatment for depression will be indefinite. As long as Mr Keogh remains depressed, he will be unable to procure or hold down any form of remunerative employment in the future. 23. I accept the opinion of Dr Likely that Mr Keogh is now suffering from treatment resistant depression. 24. I accept the opinion of both Dr Likely and Dr Chalk that Mr Keogh developed his psychiatric diagnosis as a consequence of his coal mine dust lung diseases. 25. I accept the opinion of Dr Chalk that Mr Keogh's depressive illness would deteriorate in the future and that he would become more depressed. 26. I accept the opinion of Dr Chalk that on the assumption that Mr Keogh's physical and mental condition had deteriorated since Dr Chalk last saw him, it would be extremely difficult for Mr Keogh to maintain any kind of employment.
The one area where Dr Likely and Dr Chalk were in conflict in their reports was in relation to capacity to perform a non-dust occupation.
The opinion of Dr Likely is set out in (18) above: Mr Keogh suffers from a major depressive disorder and a generalised anxiety disorder, which mean that he is totally and permanently incapacitated from undertaking any form of remunerative employment.
In his first report Dr Chalk said that from a psychiatric perspective, Mr Keogh had the capacity to work full-time in an alternative position. However, as recited above, Dr Chalk agreed in oral evidence that if Mr Keogh deteriorated physically and mentally, then it would be extremely difficult for him to maintain any kind of employment. I prefer the opinion of Dr Likely in this regard. I have accepted the evidence of Mr Keogh that while he tried on many occasions to obtain employment after he lost his mining job, he could not cope with any of the jobs that he took on. In particular, he could not cope with any job where there was new technology involved, such as the position with McMahon Ltd. Nor could he cope with the taxi driving, as he found it difficult dealing with the passengers, and he lacked motivation and the cognitive ability to look after himself at a basic level, let alone work with the general public.

[68]

Smoking

I accept the evidence of Mr Keogh regarding his smoking history. Unlike many other cases which come before the Tribunal, Mr Keogh was very frank about having a long-term smoking history and smoking a large number of cigarettes per day.
I accept the evidence of Dr Edwards and Dr Brown concerning the effect of smoking upon Mr Keogh, since they were in agreement.
I make the following findings of fact: 1. Mr Keogh smokes about 30 cigarettes a day and has smoked for a long time at that level. 2. Mr Keogh had tried on several occasions to give up smoking but found that he could not. 3. The COPD and the emphysema are associated with both respirable dust and cigarette smoking. 4. The CT scanning showed that there had been progression of pneumoconiosis, but no evidence of progression of emphysema or airway disease. 5. Part of the respiratory impairment of Mr Keogh was attributable only to dust exposure and part is attributable to smoking-related COPD and emphysema. 6. Cigarette smoking has not contributed to the pneumoconiosis changes. 7. Life expectancy would be shortened by the COPD due to cigarette smoking, but there was also a reduction in life expectancy due to pneumoconiosis. 8. Emphysema was partly contributed to by smoking but there was a direct relationship between pneumoconiosis and the development of emphysema, independently of cigarette smoking. 9. I accept the opinion of Dr Brown that 50% of the emphysema and 50% of the COPD are due to cigarette smoking alone. 10. I accept the opinion of Dr Edwards that there was a five-year reduction in life expectancy due to coal mine dust lung disease. Mr Talintyre conceded in oral submissions (Tcpt 363/19) that a five-year reduction was an appropriate finding. 11. I accept the opinion of Dr Edwards, that there is little reduction in life expectancy because of smoking, because there had been progression on the CT scan of pneumoconiosis but very little evidence of progression of emphysema or airway disease. 12. I accept the opinion of Dr Brown that a heavy smoking history can give rise to other medical conditions which could lead to incapacity; in turn this could require personal and domestic care; smoking is carcinogenic and can cause cancer.

[70]

Life Expectancy

Mr Keogh will be 53 years old in September 2024. Using the Medium Life Expectancy Tables, the life expectancy of a 53-year-old male is 32 years (ie until age 85). These Tables are used as a result of the decision of the High Court of Australia in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15.
I have found above that Mr Keogh has a five-year reduction in his life expectancy because of his coal mine dust lung disease. I will not add a further reduction in life expectancy for the smoking history, since I accept the evidence of Dr Edwards that the CT findings show little progression of disease attributable to smoking. Nor will I make a reduction in life expectancy because of alcohol consumption. It must be remembered that the life tables reflect the entire Australian population, including the smokers and the non-smokers, the inebriates and the rechabites, the carnivores and the vegans. I find that Mr Keogh has a life expectancy of 27 years (ie until age 80 in 2051).
As a result of the above findings, I further find as follows: 1. There should be an award of $5,000 for loss of expectation of life, adopting the conventional figure of $1,000 per annum. That award will be made against the first, second and third defendants, but not the fifth defendant, for reasons which appear below. 2. There should be an award for future care and assistance, and for future out-of-pocket expenses until 2050, applying the stages put forward by Dr Edwards. I recognise that Dr Edwards posits a life expectancy until 2051, but his opinion regarding ECOG stages of progression runs out in 2050. This is yet another example of the assessment of damages being "shot through with imprecision". Dr Edwards may have been using a different variant of the life tables. 3. There should be an award for future loss of earning capacity for the next 17 years, until age 70 in 2041. I select the age of 70 years because I accept the evidence of Mr Keogh that he genuinely loved the work he did, and part of his motivation for working was that it really was his only social connection in life. At the likely level of future earnings of a coal miner, he would not have been eligible for the age pension at age 67 years, so there would be no incentive to stop working then. While operating an excavator is not an easy job, nor is it one which involves brute physical strength. 4. The discount for vicissitudes should be 20% not the standard 15%, to take into account the evidence which I have accepted that smoking and drinking to excess can lead to health problems, even in a worker who is otherwise uninjured.

[72]

Evidence of Ms Cogger, Occupational Therapist

Ms Cogger, occupational therapist, saw Mr Keogh for an assessment on 23 October 2023 and provided a report dated 4 December 2023 (PX 1, Tab 31). In the report's Executive Summary (p 296), Ms Cogger recorded her observations of Mr Keogh in relation to shortness of breath (SOB), fatigue and pain. She said: "Whilst being seated and participating in the interview component of the assessment, he rated his SOB at 2/10, 'light'. His SOB increased as he completed tasks like transferring, demonstrating bed mobility, moving around his kitchen, bed making and vacuuming. When retrieving an item from the floor and doffing and donning shoes, his level of breathlessness was 'intense'. He is experiencing a 'severe' level of fatigue. This has also impacted on his capacity to think clearly and concentrate on tasks. Mr Keogh reported that he experiences intermittent 'tightness' in the chest and around the sternum."
Ms Cogger was asked to have regard to the reports of Dr Edwards and Dr Brown, and to provide her opinion on the hours of care which would be needed in the future. Unfortunately, Ms Cogger did not adopt the ECOG scale, put forward by Dr Edwards, which I have accepted as the appropriate approach to calculation of the need for future care and assistance. Further, Ms Cogger did not adopt the different periods for different levels of care put forward by Dr Edwards. Instead, Ms Cogger referred to the following levels of care: 1. "Stage 1: Low Care" which she estimated at 2.58 hours of assistance per week. Ms Cogger saw this level as applying at the present time, although the opinion of Dr Edwards was that Mr Keogh was presently at the ECOG level 0, where he is capable of full independent activities with no limitation. Further, Dr Edwards thought that Mr Keogh would remain at ECOG level 0 for 10 years until 2033. The use of the term "Low Care" by Ms Cogger seems to equate with ECOG level 1 put forward by Dr Edwards, which he described "a level of low dependency". 2. Ms Cogger split up "Low Care" to 5 years at 2.58 hours per week and then 18 years at 8.58 hours per week. Dividing "Low Care" in this way at least accords with the approach of Dr Edwards, in that he said that during the 10 years of ECOG level 1 Mr Keogh would be slowly deteriorating to ECOG level 2. However, the number of years selected by Ms Cogger simply does not line up with the years put forward by Dr Edwards, which I have accepted. 3. Ms Cogger then put forward a level of "Moderate Care" to run from 2046 to 2049. Again, the years do not line up with the opinion of Dr Edwards, who put Mr Keogh at ECOG level 2, which is "a medium level of dependence" for five years from 2043 to 2048. Nevertheless, the opinion of Ms Cogger for the number of hours required during the period of "Moderate Care" is of assistance. In her report (pp 309-310) Ms Cogger offered the opinion that Mr Keogh would require personal care of 7 hours per week, domestic care of 13 hours per week and community care of 2 hours per week, a total of 22 hours per week. 4. The next stage of care considered by Ms Cogger was described as "High Care" which ran for one year between 2049 and 2050. This seems to coincide with Dr Edwards' ECOG level 3 which is "high dependence". Ms Cogger thought that during "High Care", Mr Keogh would require personal and domestic care of 23.5 hours per week and community care of 2 hours per week, a total of 25.5 hours. 5. The next stage of care discussed by Ms Cogger was "Complete Care" for a period of one month in 2050, when Mr Keogh would require 168 hours per week. This seems to equate to Dr Edwards' ECOG level 4, which was "complete dependence" for six months before Mr Keogh's death.
Doing the best that I can to use the categories of Ms Cogger and adapt them to the opinion of Dr Edwards about the progress through the various ECOG levels, I find that Ms Cogger puts forward the hours set out in the table below. ECOG Level Hours per Week 0 Nil 1 2.58-8.58 hours 2 22 hours 3 25.5 hours 4 168 hours

[74]

Evidence of Ms Hammond, Occupational Therapist

The defendants relied upon an occupational therapy report by Ms Hammond dated 15 April 2024 (DX 12). Ms Hammond did not assess Mr Keogh in person or visit his home. Her report was based on the documents reviewed.
Because I have accepted the opinion of Dr Edwards regarding the applicability of the ECOG scale, and the likely progression along that scale, the report of Ms Hammond is of great assistance because she too approached the question by use of the ECOG scale (pp 15-16).
The conclusions of Ms Hammond were: 1. ECOG 0 - $0 per week. 2. ECOG 1 - $26.55 per week, if Mr Keogh lived in his own home with a yard. 3. ECOG 2 - $134.69 per week, if Mr Keogh lived in his own home with a yard. 4. ECOG 3 - $1,351.68 per week if living in a motor home or $1,405.75 per week if living in a unit or retirement village. 5. ECOG 4 - hourly rates are not applicable, as the cost will either be that of a nursing home or a hospital.
Ms Hammond costed the hours of care at National Disability Insurance Scheme (NDIS) rates.
The hours of care she put forward were as follows: 1. ECOG 0 - nil. 2. ECOG 1 - 0.5 hours per week for property maintenance tasks. 3. ECOG 2 - 2 hours per week for cleaning and laundry and 0.5 hours per week for property maintenance tasks. 4. ECOG 3 - personal care for 14 hours per week and domestic assistance of 1-2 hours per week for cleaning, 1 hour per week for laundry, meal delivery service at $20 per main meal and a ½ hour for shopping, bill-paying and life administration. 5. ECOG 4 - 168 hours per week, of which 8 hours per day will be active care and 16 hours per day will be passive or vigilant care.
Appendix D to the report of Ms Hammond set out the NDIS rates for commercial assistance. I find that the relevant rate is the "Remote" rate, as Mr Keogh has always lived in a regional town rather than in a capital city. The NDIS rates are set out in a table in Appendix D, and they are the hourly rates which Ms Hammond has applied to reach her calculations.

[76]

Part 9 Division 3 of the WCR Act

Part 9 of the WCR Act deals with "Assessment of Damages". Section 306A(1)(a) provides that the provisions of the Part do not apply in relation to deciding awards of damages for an injury that is a dust-related condition, other than Div 2, Div 3 Subdiv 1, and Div 4.
Division 3 of Pt 9 is also headed "Assessment of Damages". Subdivision 1 is headed "No right to damages for particular services".
Section 306C of the WCR Act provides as follows: "306C Application of sdiv 1 This subdivision sets out the principles a court must apply in awarding damages for services that are provided, or are to be provided, to a worker by another person after the worker sustains an injury."
Section 306D of the WCR Act provides as follows: "306D Definitions for sdiv 1 In this subdivision - gratuitous services means services, other than paid services, that are provided to a worker by a member of the worker's family or household, or by a friend of the worker. paid services means services that are provided to a worker at commercial rates by another person in the person's professional capacity or in the course of the person's business. services means services of a domestic, nursing or caring nature. Examples of services - • assisting with personal hygiene needs • changing bandages • cleaning • cooking • dressing wounds • gardening • housekeeping • mowing the lawn"
Section 306E of the WCR Act relates to paid services provided to the worker before injury. This has no application to the present case. Section 306F refers to the worker performing services before the injury. Section 306F is not relevant to the present case. Section 306G of the WCR Act deals with gratuitous services which were provided to the worker before the injury. There were none, so s 306G does not apply in the present case.
Section 306H of the WCR Act provides as follows: "306H Services not required by or provided to worker before injury (1) This section applies if - (a) before the worker sustained the injury, the worker usually did not require or was not usually provided with particular services; and (b) after the worker sustains the injury, the worker is provided with services (the provided services); and (c) all or part of the provided services are gratuitous services. (2) A court can not award damages for the cost or value of - (a) the part of the provided services that are gratuitous services; or (b) services of substantially the same type as the gratuitous services that are to be provided to the worker in the future as either gratuitous services or paid services. (3) However, this section does not apply if the court is satisfied that the services mentioned in subsection (2)(a) were provided as gratuitous services only in exceptional circumstances. Example of exceptional circumstances for subsection (3) - During a 2-year period after the worker sustains the injury, the provided services were provided on a weekly basis. However, the provider of the services was on holidays, or otherwise unable to provide the services, on 2 occasions. On those 2 occasions the services were provided as gratuitous services."
The Second Reading Speech (MFI 11, Tab 11) provides no guidance as to the meaning of s 306H. The First Reading Speech (MFI 11, Tab 10) does provide some assistance. The Attorney General said: "The Bill also closes a potential loophole caused by Foster & Anor v Cameron by ensuring that a court cannot award damages for domestic services that are provided gratuitously to a worker by his or her family or household and to prevent a worker converting gratuitous services received prior to trial into paid services after trial."

[81]

Consideration

The Queensland defendants submitted that what has to be answered is a simple question: where the plaintiff did not require or was not usually provided with particular services before the injury, were services provided to him gratuitously after the injury? The submission was (MFI 20 par 13): "Section 306H(1)(b) will therefore apply simply if, after the worker sustains injury, the worker is provided with services that are gratuitous services within the meaning of s 306D WCRA."
It is important to note that the heading to the section speaks of services not required by or provided to worker before the injury. Further, s 306H(1)(a) speaks of the worker usually not requiring or not usually being provided with particular services before the injury. The argument of the Queensland defendants is that when the section goes on to speak of the position after the injury, one simply asks whether as a fact services were provided, without the need to ask whether the services were needed or required because of the injury suffered. With respect, this argument ignores the fact that the only claim for damages for services which can be contemplated, is for services provided because a person has been injured. In other words, services which are required or needed because a worker has suffered an injury.
Section 306H(2) of the WCR Act is divided into two parts. Paragraph (a) deals with services "provided" in the past. Paragraph (b) deals with a claim for damages for future services, whether they are gratuitous or paid services.
It is accepted that s 306H is a section designed to limit the circumstances in which a worker can recover damages for services provided before the trial or after the trial. As a matter of law, the only services for which a claim can be made are those services, the need for which is caused by the injury. No plaintiff can make a claim for the cost of things done for him which have nothing to do with the injury. When s 306H(1)(b) speaks of the worker being provided with services after the injury is sustained, the section is only speaking of services required because the injury has been sustained. Parliament did not need to legislate to forbid a claim for gratuitous services which had nothing to do with injuries sustained by the worker. The submission put for the Queensland defendants is unduly restrictive and far too literal.
The evidence establishes that the gratuitous services provided by Mrs Keogh to her son, when he lived with her in Horsham, were not performed because Mr Keogh could not do these things for himself. Rather, they were done as part of Mrs Keogh's perceived motherly duty towards her son, in the same way as she looked after any of her children when they stayed with her. Mr Keogh gave evidence that while he was living with his mother, if he wanted to, he could have done the cooking, the cleaning and the shopping (Tcpt 101/50-102/1). He gave evidence that he was not doing those things, because his mother did them, and "she's always been like that". He gave evidence that his mother did things for him every time when he went home, as she did for all of her children. Mrs Keogh looked after her children, even though they were grown adults, and performed tasks such as cooking meals for them (Tcpt 102/2-4).
Mr Keogh gave evidence that while his mother did some of the driving, he could have driven to Bendigo and to Melbourne, but he would have had to take breaks (Tcpt 102/5-6). When he was desperately mentally ill, and had to be driven by his mother to Ballarat for a hospital admission, she drove him as he could not do that trip as a driver. That one car trip is of no moment in the case, as no part of the claim for future services relates to people driving Mr Keogh at a time when he is suicidal and when he would be incapable of driving himself.
Finally, the First Reading Speech identifies a loophole in the law created by the decision in Foster & Anor v Cameron [2011] QCA 48, which Parliament was determined to close by amending s 306H. The circumstances in that case were that an injured person was provided with services gratuitously, such services being necessitated by injuries suffered by the worker. Parliament provided in the new s 306H that a worker could not get around the intended legislative restriction on damages for services by making a claim for such services to be provided in the future on a paid basis rather than a gratuitous basis. In restricting damages which can be awarded for services, Parliament must be taken to have intended to restrict damages claims, which up until then were seen as too wide.
The only problem with damages claims, before Parliament intervened, was that the (required) services which had been provided gratuitously to an injured worker, because of his or her injuries, could be converted to a claim for paid future services. The right to claim damages for any kind of services was only a right of an injured worker who required services because of their injuries. Thus, I reject the submission for the Queensland defendants that all that has to be answered is three simply factual questions, and that just because services were provided by a mother to her adult son when he was living in her home, that means that when the need for such services arises in the future (and on the evidence put forward by the plaintiff, that need ought not arise for another nine years) such a claim cannot be made because of services provided by a mother out of love, affection and duty, not being services which were needed because the injured worker could not perform those services himself.
I will therefore proceed to assess the head of damages, relating to future paid services against the Queensland defendants, on the basis that the plaintiff is not restricted in obtaining damages by s 306H of the WCR Act.

[82]

Findings on Care and Assistance

I have found that Mr Keogh has a life expectancy of a further 27 years until 2051. I have found above that I prefer the approach of Dr Edwards and Ms Hammond, both of whom employed the ECOG scale. I have found above that I accept the opinion of Dr Edwards concerning the following need for future care and assistance as follows: 1. No care for the next nine years to 2033 (ECOG 0). 2. Low dependency for 10 years from 2033 to 2043 (ECOG 1). 3. Moderate dependency for 5 years from 2043 to 2048 (ECOG 2). 4. High dependency for 1 year from 2048 to 2049 (ECOG 3).
I accept the number of hours and the hourly rates in the report of Ms Hammond, relating to the ECOG phases 0, 1, 2, and 3. Ms Hammond did not provide a figure for the ECOG 4 complete dependency stage. Ms Cogger did - $13,447.60 per week (PX 1, p 313). Using that evidence, I find that the cost of care during the period of complete dependency (ECOG 4) for six months in 2050 is $13,447.60 per week.
Applying those numbers to the summary of Dr Edwards immediately above, leads to the following conclusions in relation to the weekly cost of care and assistance: 1. 2024 to 2033 (nine years): nil 2. 2033 to 2043 (10 years): $26.55 per week 3. 2043 to 2048 (five years): $134.69 per week 4. 2048 to 2049 (one year): $1,405.75 per week 5. 2050 (for six months): $13,447.60 per week
I will now set out my calculations for the "full value" damages for future care and assistance, before taking account of the proportionate responsibility of each defendant for the divisible nature of the coal mine dust lung diseases. I must use the 5% multiplier and deferral figures for the Queensland torts and for Downer Regional, and the 3% multiplier and deferral figures for Downer EDI in relation to the NSW tort.
The award for damages for "full value" future care and assistance using the 5% tables is calculated as follows: Period Calculation Total 2033 to 2043 $26.55 x 412.9 x 0.645 $7,070.81 2043 to 2048 $134.69 x 231.5 x 0.396 $12,347.57 2048 to 2049 $1,405.75 x 50.9 x 0.310 $22,181.33 2050 $13,447.60 x 25.5 x 0.281 $96,358.78 TOTAL $137,958.49

[85]

Future Out-of-Pocket Expenses

In paragraph 349 above I set out the estimates given by Dr Brown for potential medical and other costs relating to respiratory care. I accept those estimates. I will allow "full value" damages for the amounts discussed below.
Dr Brown put a lump sum figure of $27,000 on medical care from a general practitioner and respiratory specialist, with regular screening and scans. I have made a finding above that Mr Keogh has a life expectancy of 27 years. Thus, the cost for this first item of respiratory care equates to $1,000 per annum which is $19.23 per week. The 3% multiplier for 27 years (applicable for the NSW tort of the third defendant) is 970.6. The 5% multiplier (applicable to the first, second and third defendants for the Queensland torts, and to Downer Regional) is 783.0.
For this first component of future respiratory care the calculations are: 1. On the 3% tables: $19.23 per week x 970.6 = $18,664.64. 2. On the 5% tables: $19.23 per week x 783.0 = $15,057.09.
Dr Brown also thought that the cost of medications, including aerosol treatments, antibiotics and depression-related medications was $15,000. I will deal separately with the cost of depression-related medications. I will perform my calculations on this aspect of future respiratory care on the assumption that the appropriate lump sum for medications, other than psychiatric medications, is $10,000 spread over 27 years. This equates to $370.37 per year or $7.12 per week. The calculations are: 1. On the 3% tables: $7.12 per week x 970.6 = $6,910.67. 2. On the 5% tables: $7.12 per week x 783.0 = $5,574.96.
Dr Brown thought that the cost of supplementary oxygen therapy would be $10,000 and there would be at least two episodes of hospitalisation to manage complications such as infection, at a cost of $15,000. The total of these two figures if $25,000. They are not going to be incurred in the near future. I will defer the total of $25,000 for a period of 15 years. The 3% deferral figure for 15 years is 0.642. The 5% deferral figure for 15 years is 0.481.
The calculations are: 1. On the 3% tables: $25,000 x 0.642 = $16,050. 2. On the 5% tables: $25,000 x 0.481 = $12,025.
In relation to the cost of psychiatric medication and necessary psychological counselling and psychotherapy, I adopt the figures of Dr Likely discussed above, being a total of $600 per month, which equates to $138.46 per week. The calculations are: 1. On the 3% tables: $138.46 x 970.6 = $134,389.27. 2. On the 5% tables: $138.46 x 783.0 = $108,414.18.
In addition I will allow the figure of $2,000 for future equipment as stated above.

[89]

Past Economic Loss: Submissions for Plaintiff

In the primary written submissions for Mr Keogh (MFI 8) counsel set out the approach to past economic loss in Annexure "A", Schedule "D" (in respect of the first and second defendants) and Annexure "B", Schedule "D" (in respect of the third defendant). The submission can be summarised as follows: 1. In the last three full financial years of the Mr Keogh's employment, his average gross annual wage was $114,337. 2. Mr Keogh's current salary, if he could work in the open cut coal mining industry, would be $168,000 gross per annum. 3. His yearly salary would have increased by $10,736.60 per year, being the difference between his average salary at the time of his diagnosis and the average salary which he could earn now, divided by five years. 4. From 22 October 2018 to 30 June 2019 Mr Keogh could have earned $59,113.60 nett of tax. 5. Between 1 July 2019 and 30 June 2020 Mr Keogh could have earned $91,000 nett of tax. 6. Between 1 July 2020 to 30 March 2021 Mr Keogh could have earned $71,136 nett of tax. 7. The plaintiff makes no claim for the gap between 30 March 2021 and 11 January 2022, when he would not have been able to work because of the problem with his toe which resulted in its amputation. 8. Between 11 January 2022 and 30 June 2022 Mr Keogh could have earned $47,856 nett of tax. 9. From 1 July 2022 to 30 June 2023 Mr Keogh could have earned $110,032 nett of tax. 10. Between 1 July 2023 and 30 June 2024 Mr Keogh could have earned $117,988 nett of tax. 11. The total of these figures is $497,125.60 nett of tax. 12. Mr Keogh's actual earnings since diagnosis, as disclosed in the tax returns for financial years 2021, 2022 and 2023 were $63,179.92 nett of tax. 13. Subtracting the actual earnings from the potential earnings, the calculation is: $497,125.60 - $63,179.92 = $433,945.68.
Counsel for Mr Keogh also submitted that he had lost past superannuation at a rate of 11% on this figure. The calculation for past loss of superannuation is: $433,945.68 x 11% = $47,734.02.
Counsel for Mr Keogh also claimed interest on those amounts and set out calculations in Table D1 to MFI 8. That table calculates interest on past economic loss to be $26,847. That figure was later revised down to $26,439 (MFI 28). This revised figure calculated interest to 1 April 2024 and indicated that interest was accruing on $257,909.25 at the rate of 7.76%. I will add $5,993 to the figure in MFI 28, to cover the period (109 days) between 1 April 2024 and delivery of this judgment. The calculation is: $26,439 + $,5,993 = $32,432.
Thus the total amount submitted for "full value" past economic loss, past loss of superannuation and interest on those past losses is: $433,945.68 + $47,734.02 + $32,432 = $514.111.70.

[96]

Quantum: General Damages

In relation to the first, second and third defendants, the assessment of damages for pain and suffering and loss of enjoyment of life is a common law assessment. The Tribunal really is in uncharted territory, as there have been no previous common law assessments for coal mine dust lung diseases (even if a judge were permitted to have regard to previous decisions). Nor can any assistance be obtained by considering recent awards of the Tribunal for general damages for mesothelioma, where the suffering is intense but lasts for a much shorter time than Mr Keogh is facing.
I have already indicated above that I accept all of the evidence of Mr Keogh in relation to his respiratory and psychiatric pain and suffering. I accept his evidence concerning the effects of the conditions upon him, and the progression of his respiratory difficulties. My findings of fact are set out in detail above under the heading "Findings on Medical Issues".
Mr Keogh is almost 53 years of age. I have found that he has a life expectancy of another 27 years, during which time he will become more and more debilitated, both because of his coal mine dust lung diseases, and because of the mental and emotional effects of those diseases. He will die early and will live out his last days requiring 24-hour care.
Mr Tzouganatos submitted that an appropriate figure for general damages was $750,000 (MFI 8, Synopsis of Damages). Mr Talintyre submitted that the appropriate figure was in the range of $350,000 to $400,000 (Tcpt 363/15). Counsel for the other defendants basically adopted the quantum submissions of Mr Talintyre. I am of the view that the figure put forward for the defendants is far too low. Such a figure would not reflect the pain and suffering yet to come over the next 27 years, let alone compensate Mr Keogh for what he has already been through.
My view is that the appropriate figure for general damages is $750,000.
There will also be an award for interest on past general damages, which I find to be $250,000. The calculation for interest is: $250,000 x 2% x 5.75 years = $28,750.

[101]

Damages against Downer Regional

It is now necessary to consider the New South Wales statutory damages regime for coal miners, a "dark wood where the straight way was lost". Such was the debate between Mr Tzouganatos and Mr Rowles about what the legislation meant, that they dealt with the topic in their primary written submissions (MFI 8 and MFI 24), two folders of legislation and cases (MFI 9 and MFI 11), additional short written submissions (MFI 10, MFI 17 and MFI 18), oral submissions during the hearing, additional oral submissions on 19 April 2024, and replies, responses and ripostes filed by leave after judgment was reserved (MFI 26, MFI 27, MFI 28, MFI 29, MFI 30 and MFI 31). That is not said as a criticism, as I was grateful to have the submissions of experienced counsel to assist in untangling the Gordian knot created by the legislation.
The parties agreed that: 1. The Workers Compensation Act 1987 (NSW) (the WCA) governs the award of damages sought by Mr Keogh against Downer Regional, relating to the employment of Mr Keogh by Downer Regional at Boggabri. 2. The modified common law damages provisions in Pt 5 Div 4 of the WCA, before certain 2001 amendments, applied. This Division contains ss 151E to 151T. 3. Section 151J of the WCA applies to an award of damages for future economic loss and so the appropriate discount rate is 5%.
There was a dispute between the parties concerning the following legal issues: 1. Which additional provisions of the WCA apply to the plaintiff's claim? 2. Whether s 151D of the WCA means that Mr Keogh is statute barred from commencing these proceedings against Downer Regional. 3. Whether the Dust Diseases Tribunal may award provisional damages against Downer Regional. 4. Whether employment was a contributing factor or whether employment was the main contributing factor to contracting the diseases. 5. What was the date of injury and what is the effect of s 15 of the WCA? 6. While the parties agreed that 151G of the WCA applies to an assessment for damages for non-economic loss, there was a dispute as to whether the plaintiff met the threshold requirement imposed by s 151G of the WCA. 7. While it was agreed between the parties that s 151H of the WCA applied to damages for economic loss claimed by the plaintiff against the fifth defendant, there was a dispute as to whether the plaintiff met the definition and threshold under s 151H. 8. Whether s 151I of the WCA resulted in there being a cap on the award of damages for past and future economic loss. 9. Whether the plaintiff had failed to undergo appropriate medical treatment for his psychiatric injury or to manage his smoking and alcohol consumption. 10. The parties agreed that Mr Keogh cannot claim or be awarded interest on any damages awarded for past economic loss. Downer Regional submitted that interest on other heads of damage should not be awarded, because of the provision in s 151M(4) of the WCA. There was an initial dispute about the rate of interest payable on damages awarded, but Downer Regional eventually conceded that the plaintiff is entitled to interest at a rate of 75% of the rate prescribed for the purpose of s 101 of the Civil Procedure Act 2005 (NSW) - see MFI 29 at par 5.6. 11. Whether the court is required to apportion damages and costs under s 151S of the WCA.

[103]

Is the Claim Statute Barred?

Mr Rowles submitted that by operation of s 151D(2) of the WCA, the claim brought against Downer Regional by Mr Keogh was statute barred.
Section 151D(2) of the WCA provides as follows: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."
It was common ground that Mr Keogh had not sought leave under s 151D(2) to commence these proceedings.
Mr Tzouganatos submitted that s 12A of the DDT Act operated to abolish all limitation periods for claims in relation to dust-related conditions, and thus s 151D(2) of the WCA had no application.
Section 12A of the DDT Act provides as follows: "12A No limitation period (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time. (2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions. (3) Without limiting subsection (2): (a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and (b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and (c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force." (Emphasis added)
The usual time limit for a worker to bring proceedings against an employer for damages is the time limit prescribed by s 151D(2) of the WCA. This subsection is a "statute of limitations" as that phrase is used in s 12A(2) of the DDT Act. Thus nothing in s 151D(2) operates to prevent Mr Keogh bringing proceedings before the Tribunal in relation to his dust-related conditions. I find that s 151D(2) of the WCA does not apply to the claim brought by Mr Keogh, as it is a proceeding brought before the Tribunal in relation to his dust-related conditions. Such a claim may be brought before the Tribunal at any time.
I find that the claim is not statute barred.

[104]

Can the Tribunal Award Provisional Damages?

The claim against Downer Regional is for provisional damages, pursuant to s 11A of the DDT Act, which provides as follows: "11A Award of provisional damages (1) This section applies to proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought (the injured person) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition. (2) The Tribunal may, in accordance with the rules: (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and (b) award further damages at a future date if the injured person does develop another dust-related condition."
Section 11A abrogates the "once and for all" rule in relation to an award of damages for personal injury. It is a substantive provision which applies to torts committed in New South Wales. It does not apply to torts committed in Queensland, where there is no provisional damages provision in the law.
Mr Rowles submits that s 151F of the WCA has the effect that provisional damages cannot be awarded to a coal miner seeking damages against an employer.
Part 5 Div 3 of the WCA deals with "Modified Common Law Damages". Section 151E(1) of the WCA provides: "(1) This Division applies to an award of damages in respect of-- (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer."
Section 151E(3) of the WCA provides: "(3) This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action."
Section 151F of the WCA provides as follows: "151F GENERAL REGULATION OF COURT AWARDS A court may not award damages to a person contrary to this Division."
The submission made by Mr Rowles is that to award provisional damages would be to award damages contrary to Pt 5 Div 3 of the WCA dealing with "Modified Common Law Damages".
I do not accept this submission. Nowhere in Pt 5 Div 3 is there a prohibition on provisional damages. Section 11A of the DDT Act is of universal application to any proceedings of the kind referred to in s 11(1) of the DDT Act, which are proceedings brought by a person suffering from a dust-related condition where such condition is attributable or partly attributable to a breach of duty owed to the claimant. Section 11(1) of the DDT Act provides that such proceedings for damages in respect of that dust-related condition may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal. Thus the Dust Diseases Tribunal has exclusive jurisdiction to hear damages claims in relation to dust-related conditions. Section 10(4) of the DDT Act provides that in any proceedings brought under s 11, "the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court". Section 10(5) of the DDT Act provides that a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court.
The claim made by Mr Keogh has been brought in the exclusive jurisdiction of the Dust Diseases Tribunal. That gives Mr Keogh a right to provisional damages, as provided in s 11A of the DDT Act. It is correct, as submitted by Mr Rowles, that certain heads of damages are governed by the WCA, in that it modifies how much can be awarded for various heads of damages. However, there is no prohibition in the WCA upon the Tribunal exercising all of the powers given to it by the DDT Act, which includes a power to award provisional damages.
Further, it would be anomalous if persons who contracted a dust-related condition through employment were given lesser rights than persons who contract a dust-related condition through non-employment exposure to dust. The DDT Act covers the field, and is not cut down in any way by the WCA, at least in respect of the award of provisional damages. I reject the submission made by Mr Rowles on this topic.

[105]

Causation and Contributing Factor

Paragraph 20.1 of the Defence to Amended Statement of Claim of Downer Regional pleads reliance upon a definition of "injury" said to come from s 4 of the 2001 version of the WCA. Mr Rowles submits that this definition requires a plaintiff to prove that he contracted a disease "in the course of employment but only if the employment was the main contributing factor to contracting the disease".
In raising this as a defence, Downer Regional is relying upon the current version of the definition of "injury" in s 4 of the WCA. The current version is: "injury - (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means - (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined." (Emphasis added)
Mr Tzouganatos submitted that this definition of "injury" was inserted into the WCA by the Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 7(1).
Mr Tzouganatos submitted (MFI 8, par 177) that the 2012 amendment did not apply to the present case, because of Sch 6, Pt 19H, cl 26 of the Workers Compensation Legislation Amendment Act 2012 (NSW) which provides: "The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a coal miner (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted."
Prior to the 2012 amendment of the definition of "injury" a worker had to prove simply that the employment was "a contributing factor", not that the employment was "the main contributing factor".
Mr Tzouganatos submitted that the plaintiff did not have to show that the employment was "the main contributing factor", but simply had to prove that the employment was "a contributing factor". I accept that submission. The definition of "injury" applicable to the present case, involving an injury received by a coal miner, is the pre-2012 definition which requires the plaintiff to prove that employment was "a contributing factor".
I have reviewed the evidence of Dr Edwards and Dr Brown above, which plainly shows that exposure to dust in the course of coal mining was the only factor leading to the development of CWP, silicosis and mixed dust pneumoconiosis. That evidence also shows that coal mine dust exposure was a contributing factor to emphysema and COPD. Smoking was the other contributing factor.
I therefore find that Mr Keogh has established causation against Downer Regional, as that concept is understood in the light of the definition of "injury" which applies to him as a coal miner.
If I am wrong in that analysis, then I also find that the employment was the main contributing factor to the development of CWP, silicosis and mixed dust fibrosis. Indeed, the exposure to those dusts was the only contributing factor, and thus the employment, at least in relation to those diseases, was the main contributing factor to Mr Keogh contracting those diseases.

[106]

Date of Injury

Section 151G of the WCA governs damages for non-economic loss. It provides in s 151G(8) that the damages awarded are to be assessed by reference to the amount in force "at the date of injury". Section 151H of the WCA governs damages for economic loss. It provides in s 151H(6) that the damages awarded for economic loss are to be assessed by reference to the amount in force at "the date of the injury".
Mr Rowles submitted that the date of injury could be ascertained by reference to s 15 or s 16 of the WCA. Section 15 of the WCA deals with the case where an injury is a disease which is contracted by a gradual process. Section 16 of the WCA deals with the case where an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease. In both cases, the injury shall, for the purposes of the WCA, be deemed to have happened: 1. At the time of the worker's incapacity, or 2. If incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury.
The first submission of Mr Rowles was that the date of the injury fixed by either s 15 or s 16 of the WCA, was "the date on which last exposure in NSW occurred" - MFI 24, par 2.1(d). At this date, the April 2016 indexation rate applied. In the alternative, he submitted that if the date of incapacity was in 2018, then the October 2018 indexation date applied - MFI 24, par 2.1(e).
It is difficult to see why the relevant date would be when the last employment exposure in New South Wales occurred. That phrase is to be found in s 15(1)(b) and s 16(1)(b) of the WCA. However, those paragraphs provide that "compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due". Mr Keogh is not seeking compensation; he is seeking modified common law damages. Further, those provisions simply identify the employer on risk, they do not say that the injury must be suffered during the period of employment. The notion of the date of last exposure in New South Wales (presumably meaning last employment date in New South Wales) does not appear in s 15(1)(a) or s 16(1)(a).
Paragraph 20.2 of the Defence to Amended Statement of Claim of Downer Regional pleads that the injury of the plaintiff is deemed to have occurred at the time of his incapacity pursuant to s 15 of the WCA, and that the plaintiff has alleged incapacity from on or about 22 October 2018. The pleading continues: "The Fifth Defendant therefore denies liability for this claim upon the basis that it was not the employer at this time of alleged incapacity."
That pleading is supported by no more than the bare assertions in the written submissions referred to above.
Mr Tzouganatos submitted that Downer Regional cannot rely upon s 15 of the WCA as that section has no application to the plaintiff's common law claim for damages. Mr Tzouganatos submits that it applies solely to any statutory rights (ie a workers compensation claim) that Mr Keogh may have had under the WCA.
It is difficult to see why that submission is correct. Sections 151G and 151H of the WCA both say that the damages awarded are to be assessed by reference to the amount in force "at the date of the injury". Section 15(1)(a) provides that if there is a disease of gradual process, then the injury shall "for the purposes of this Act, be deemed to have happened" at the time of the worker's incapacity. There is no indication in the words of s 15(1)(a) that the fixing of the date of injury is to be confined to a right to compensation rather than for all purposes under the Act. Further, if s 15(1)(a) does not apply to a modified common law damages claim, then how is the court to establish the date of injury, so as to ascertain the basis for an award of damages for non-economic loss and economic loss? There is no different definition of "the date of injury" contained in the modified common law damages provisions of the WCA.
In any event, the submission by Mr Tzouganatos in relation to non-economic loss (MFI 8, pars 229-236) was that because Mr Keogh was diagnosed with CWP in October 2018, it is the October 2018 figure in the Workers Compensation Benefits Guide - April 2024 (MFI 11, Tab 19) published by the State Insurance Regulatory Authority (SIRA), which applies. The ultimate conclusion expressed by Mr Tzouganatos was that the applicable maximum amount of non-economic loss awardable under s 151G of the WCA is $437,633.
The submission of Mr Rowles (MFI 24, Appendix 2) confirms that the appropriate figure applicable from 1 October 2018 was $437,633 for non-economic loss. Mr Rowles also set out the figure of $416,733, applicable as at 1 April 2016.
I reject the submission of Mr Rowles that the 2016 figure is the applicable one, or that the figure to be selected results from the date of injury being the date at which the worker was last employed. I find that the appropriate figure is $437,633, which applied at the time of the worker's incapacity. On the evidence, this is shortly after 1 October 2018. Mr Keogh worked right up until the date of his diagnosis.

[107]

Non-Economic Loss

The applicable version of s 151G of the WCA is as follows: "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."
Section 149(1) of the WCA defines "non-economic loss" to mean: "(a) pain and suffering, and (b) loss of amenities of life, and (c) loss of expectation of life, and (d) disfigurement."
Mr Rowles submitted (MFI 24, par 5.4) that Mr Keogh could not satisfy the non-economic loss "threshold" in s 151G of the WCA. This is a reference to s 151G(3), which provides that if the amount of non-economic loss is assessed at less than a certain figure, no damages for non-economic loss are to be awarded. That figure was originally $36,000 in the 2001 version of the WCA. Mr Rowles submits, correctly in my view, that the applicable indexed threshold at the present time is $77,229. That threshold is a dollar figure which represents approximately 17.65% of the maximum amount which can be awarded for non-economic loss.
Section 151G(3) of the WCA provides that the maximum amount that may be awarded for non-economic loss is the 2018 indexed figure of $437,633, but the maximum amount may be awarded only in a most extreme case. Mr Tzouganatos submitted (MFI 8, par 241) that this maximum award should be made, because it is difficult to conceive of a more serious injury, for a coal miner, than that sustained by Mr Keogh. I reject this submission. The reference to "a most extreme case" is not a reference to a most extreme case of a coal miner, or a most extreme case of any worker in a particular occupation. The words mean exactly what they say. In the field of motor accident damages, those words have been interpreted to include quadriplegics and children with severe brain injuries. Without downplaying the significant difficulties which Mr Keogh has, and which will increase, he is not a most extreme case.
Section 151G(2) of the WCA requires the award of damages for non-economic loss to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. This requires the Tribunal to assess the non-economic loss of Mr Keogh by fixing a percentage of the maximum amount which may be awarded.
I have set out above in detail my findings concerning the effect of the coal mine dust lung diseases upon Mr Keogh, including the psychiatric sequelae. In awarding damages for non-economic loss, I not only compensate Mr Keogh for his past pain and suffering, but also for the significant and increasing pain and suffering over the next 27 years of his life. I find that the appropriate "proportion" as required by s 151G(2) of the WCA, requires an award of 75% of the maximum amount. The calculation is: $437,663 x 0.75 = $328,225.75.
I reject the submission made by Mr Rowles that, if Mr Keogh exceeds the statutory threshold, he should be awarded no more than 40% of a most extreme case (MFI 24, par 6.17).
There is a second threshold provision in s 151G, contained in s 151G(4) of the WCA. This sets a sliding scale for non-economic loss damages which fall above the lower threshold, but below approximately 23.5%. Mr Keogh exceeds this upper threshold limit, and thus there will be no reduction in the damages for non-economic loss.
It was common ground that in his claim against Downer Regional, Mr Keogh cannot obtain a separate head of damages for loss of expectation of life, because of s 149(1)(c), which has been reproduced above.

[108]

Economic Loss: Serious Injury

Section 151H of the WCA contains a threshold which a plaintiff must satisfy before there can be any damages awarded for economic loss. A plaintiff must show that he has received "a serious injury".
Section 151H of the WCA provides: "151H No damages for economic loss unless injury serious (1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury. (2) A serious injury is, if received before the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991: (a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 33 per cent of the maximum amount from time to time referred to in section 66 (1), or (b) an injury for which damages for non-economic loss of not less than $67,800 are to be awarded in accordance with this Division (whether or not compensation is payable under section 66). (2A) A serious injury is, if received on or after the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991: (a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66 (1), or (b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66). (3) (Repealed) (4) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amount of $48,000 were an adjustable amount and were referred to in section 81 (1). However, section 80 (2) does not apply to the amount of $48,000. (5) For the purposes of determining whether an injury is a serious injury, the court has the powers under this Act of the Compensation Court relating to the reference of a matter to a medical referee or medical panel for report. (6) If an amount mentioned in this section: (a) is adjusted by the operation of Division 6 of Part 3, or (b) is adjusted by an amendment of this section, the damages awarded are to be assessed by reference to the amount in force at the date of the injury."
Mr Keogh satisfied the definition of serious injury contained in s 151H(2A)(b) in that damages of more than the threshold amount in that paragraph are to be awarded to him. Mr Rowles submits that the present level of the threshold is $102,972 (MFI 24, par 5.6). As found above, damages for non-economic loss have been assessed at $328,225.75. This is above the indexed threshold of $102,972. Thus the serious injury threshold in s 151H of the WCA has been satisfied.

[109]

Economic Loss: Cap on Earnings

Section 151I of the WCA provides that in relation to past economic loss, the court is to disregard the amount by which the injured worker's nett weekly earnings would, but for the injury, have exceeded the amount that is the maximum amount of weekly payments of compensation under s 35 of the WCA. Mr Tzouganatos and Mr Rowles were agreed that the s 35 cap applies to a claim for nett weekly earnings and not gross weekly earnings. Mr Rowles tendered MFI 10, which is a schedule setting out the maximum weekly payment under s 35 of the WCA from time to time. MFI 10 contains a note at the bottom which says, "[n]ote the above amounts are expressed as gross amounts and include any allowance for superannuation". That note is not part of the SIRA Workers Compensation Benefits Guide, and I take it to be a submission. I deal below with the claim for superannuation. For the reasons set out below I have come to the view that the maximum weekly payment figure under s 35 of the WCA does not include allowances for superannuation, which can be compensated as a separate head of damage. If, contrary to that conclusion, loss of superannuation was to be added to loss of wages, then the s 35 cap would be exceeded.
The claim put forward by Mr Tzouganatos for past economic loss and future loss of earning capacity relates to loss of nett wages. For each of the periods for which a claim is made, and for the future, I find that the amounts sought by Mr Keogh are, in every case, below the s 35 cap set out in MFI 10.
The calculations have been set out above in relation to the award for past economic loss and the award for future loss of earning capacity, against the Queensland defendants using the 5% discount tables. Because the amounts claimed from time to time do not exceed the cap under s 35 of the WCA, those amounts are also the applicable figures for the award against Downer Regional for past economic loss and future loss of earning capacity. It was agreed that a 5% discount rate applies to future economic loss, because of s 151J of the WCA. To reiterate, those amounts are: 1. Past economic loss (not including past superannuation): $433,945.68. 2. Future loss of earning capacity (not including future superannuation): $1,094,202.50.

[110]

Superannuation

Mr Tzouganatos submitted that Mr Keogh was entitled to an award for loss of superannuation which would have been paid by his employer, over and above an award of damages to reflect his loss of wages. Against the first, second and third defendants, there was no dispute that Mr Keogh was entitled to a separate award for loss of superannuation. That has been included in the figures set out above in relation to the first, second and third defendants.
Mr Rowles submitted that under the WCA there could not be a separate and additional award for loss of superannuation. Rather, he submitted that any loss of superannuation had to be lumped in with nett weekly earnings. The significance of that submission was that it could push the weekly amount claimed over the maximum amount for nett weekly earnings allowable under s 151I of the WCA.
For his submission Mr Rowles relied upon the decision of the Court of Appeal in Kaplantzi & Anor v Pascoe [2003] NSWCA 386 (Kaplantzi). That case concerned a limitation on damages for past or future economic loss contained in the Motor Accidents Compensation Act 1999 (NSW). Section 125(1) of that statute provided as follows: "(1) This section applies to an award of damages: (a) for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for the loss of expectation of financial support."
At par 42 of the decision in Kaplantzi Hodgson JA said: "In my opinion, the benefit of superannuation contributions made by an employer is an element of asset acquisition through the exercise of the deceased's earning capacity, and thus also is to be taken into account as part of nett weekly earnings. It follows that the separate award of $36,973.06 in relation to superannuation must also be set aside."
In response Mr Tzouganatos pointed out that the provisions in the Motor Accidents Compensation Act 1999 (NSW) are different to those in the WCA.
The point arose for decision in a modified common law damages claim under the WCA in Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284 (Glover). A submission was made for the defendant in that case, similar to the finding of Hodgson JA in Kaplantzi, set out above. Under the WCA, s 151I provides as follows: "151I 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."
In Glover, Harrison J did not deal with the defendant's submission that superannuation contributions paid by an employer are part of economic loss due to loss of earnings or future economic loss due to deprivation or impairment of earning capacity. Instead, Harrison J accepted a submission made for the plaintiff that s 149 of the WCA applied, which resulted in a separate award for loss of superannuation benefits paid or to be paid by an employer.
Section 149(1) of the WCA provides as follows: "149 Definitions (1) In this Part: damages includes: (a) any form of monetary compensation, and (b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), but does not include: (c) compensation under this Act, or (d) additional or alternative compensation to which Division 8 of Part 3 applies, or (e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or (f) a sum required or authorised to be paid under a State industrial instrument, or (g) any sum payable under a superannuation scheme or any life or other insurance policy, or (h) any amount paid in respect of costs incurred in connection with legal proceedings, or (i) damages of a class which is excluded by the regulations from this definition."
The decision of Harrison J on the point is to be found at [10] and [11] of Glover where his Honour said: "10 The definition of 'damages' expressly excludes any sum payable under a superannuation scheme. In other words, superannuation is not expressly contemplated as a head of damage under the legislation. Superannuation has otherwise been conventionally recognised and applied as a head of damage at common law: see, for example, Todorovic and Anor v Waller [1981] HCA 72; (1981) 150 CLR 402. In short, the limitations applying to damages do not apply to those heads of damage that have been specifically excluded. An award of damages in accordance with s 151F is not an award of 'any form of monetary compensation' that includes superannuation. 11 The defendant did not make submissions that dealt with Mr Glover's argument based on s 149. That is unsurprising. In my opinion the definition of damages in that section clearly excluded superannuation from the operation of the modified common law damages regime in Division 3. The availability of superannuation as an unmodified head of common law damages remained. Mr Glover is entitled to the agreed sum of $178,951.56 for this head of damage."
It is arguable that when s 149(1)(g) of the WCA speaks of "any sum payable under a superannuation scheme" it is referring to amounts paid out by the trustee of a superannuation scheme, rather than paid into a superannuation fund by an employer. It is to be noted that the phrase "any sum payable under a superannuation scheme" occurs in the same paragraph as reference to a sum payable under "any life or other insurance policy", which of course would be a payment out to an injured worker.
Despite that available argument, the decision of Harrison J in Glover is that of a superior court and I find that, as a matter of judicial comity, I should follow that decision. I am reinforced in that view by the decision of Garling J in McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341 (McGoldrick), which referred to the approach of Harrison J, with apparent approval at [156]. McGoldrick was a claim by a coal miner for modified common law damages under the WCA.
I will follow the decisions of Harrison J and Garling J and make a separate award against Downer Regional, in relation to both past and future superannuation losses.
The award for loss of past superannuation will be $47,734.02 which is the figure calculated on the 5% tables. The award for future loss of superannuation will be $159,315.88, again using the 5% discount tables for future economic loss, which also applies to Downer Regional because of s 151J of the WCA.

[111]

Failure to Mitigate

Section 151L of the WCA provides: "151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, (c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker."
Mr Rowles submitted (MFI 24, par 9.1) that the plaintiff had failed to undergo appropriate medical treatment for his psychological injury or to manage his smoking and alcohol consumption.
I have found above that the plaintiff did consult psychologists in the early days after he developed his psychiatric state, but I accept his evidence that he found little value in returning to see them. I also accept his evidence that living in a country town, it was very hard to obtain mental health help. Mr Keogh does continue to see his general practitioner and takes the medication prescribed for his psychiatric condition. I reject the submission that Mr Keogh has failed to undergo appropriate medical treatment for his psychiatric condition.
So far as management of alcohol consumption is concerned, s 151L(1) provides that the court must consider the steps that have been taken and that could reasonably have been taken "to mitigate those damages". There was no medical evidence to suggest that the consumption of alcohol by Mr Keogh, even though at a high level, had done anything to affect his respiratory condition or his psychiatric state. While it was acknowledged by doctors that the level of alcohol consumption of Mr Keogh is not a healthy one, there was no medical link between reducing alcohol consumption, and the possibility of improving the respiratory condition or the psychiatric state. I reject the submission that Mr Keogh has failed to mitigate his damages by managing his alcohol consumption.
In relation to managing smoking, Mr Keogh and the doctors acknowledged that he smokes far too much. His smoking has made a contribution towards his COPD and his emphysema. I have taken into account in assessing damages, that not all of these two conditions relate to dust exposure. Damages have therefore been moderated in the sense that they had been assessed only to compensate Mr Keogh for the conditions caused by mine dust exposure. Had Mr Keogh not been a smoker, his damages would have been higher, because smoking has made a contribution towards emphysema and COPD. I reject the submission that Mr Keogh has failed to mitigate his damages by managing his smoking.
These findings also answer the submissions of Mr Talintyre that Mr Keogh has failed to mitigate his damages.

[112]

Interest

Section 151M of the WCA provides as follows: "151M Payment of interest (1) Limited statutory entitlement A plaintiff has only such right to interest on damages as is conferred by this section. (2) Domestic services, nursing and attendance No interest is payable on damages comprising compensation under section 151K. A court cannot order the payment of interest on such damages. (3) Non-economic loss No interest is payable on damages awarded under section 151G. A court cannot order the payment of interest on such damages. (4) Other heads of damages The following provisions apply to damages, other than damages to which subsection (2) or (3) applies: (a) Interest is not payable (and a court cannot order the payment of interest) on such damages unless: (i) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or (ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or (iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. (b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff's full entitlement to all damages of any kind. (c) For the purposes of this subsection, an offer of settlement must be in writing. (5) Calculation of interest If a court is satisfied that interest is payable under subsection (4) on damages: (a) the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and (b) the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section. (6) Rate of interest The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 95 of the Supreme Court Act 1970 for the period concerned. (7) Judgment debts Nothing in this section affects the payment of interest on a debt under a judgment or order of a court."
Counsel were agreed that there could be no interest on non-economic loss because of s 151M(3) and that the appropriate rate of interest, if any, was 75% of the court rate of interest, because of s 151M(6).
Mr Rowles opposed any award of interest because the plaintiff did not provide information to enable Downer Regional to make a proper assessment of the plaintiff's claim and also because Downer Regional had not had a reasonable opportunity to make an offer of settlement in respect of the plaintiff's full entitlement to damages of any kind. Thus Downer Regional relied upon s 151M(4)(a)(i). In written submissions (MFI 29, pars 5.2-5.4) Mr Rowles pointed out that the plaintiff filed an Amended Statement of Claim and an Amended Statement of Particulars on 27 March 2024 but was not granted leave to proceed upon the Amended Statement of Particulars until 5 April 2024. The trial commenced on 8 April 2024. There is much force in this submission.
In the Amended Statement of Claim the most important amendments were to add a claim for damages for silicosis and emphysema. These had not been pleaded until the Amended Statement of Claim was filed on 27 March 2024. Indeed, prior to that amendment, silicosis was listed as a disease for which further damages might be claimed under s 11A of the DDT Act.
The Amended Statement of Particulars provided much detail that was not in the earlier version of that document. The Amended Statement of Particulars dramatically increased the following claims: 1. The claim for past economic loss was originally particularised in a total amount of $230,103.19. The increased amount particularised for the first time just before the trial was for an amount of $452,021.45. 2. The originally particularised claim for future economic loss totalled $518,255.65. The new claim for future economic loss was for $969,333.03 (to age 67 years) or $1,091,591.25 (to age 70).
The late addition of two diseases to the Amended Statement of Claim and the late supply of particulars which greatly increased the claim for past economic loss and future loss of earning capacity, leads me to conclude that the plaintiff did not provide information that would enable a proper assessment of his claim and further that Downer Regional did not have a reasonable opportunity to make an offer of settlement after receiving the Amended Statement of Claim and the Amended Statement of Particulars.
I am therefore of the view that interest is not payable on any of the heads of damage which I will award to Mr Keogh against Downer Regional. The test in s 151M(4) has not been satisfied.

[117]

Defence to Amended Statement of Fifth Cross Claim

In its Defence to the A5CC Downer EDI denied that it owned Boggabri as alleged in par 7 of the A5CC. Downer EDI said that it held a Mine Services Contract for Boggabri which included the period from 15 September 2014 to 15 June 2016.
Downer EDI admitted that it was the operator, as defined in the Coal Mine Health and Safety Act 2002 (NSW) and the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), of Boggabri during that period.
The definition of an "operator" in the Coal Mine Health and Safety Act 2002 (NSW) was: "(a) in relation to a coal operation that is a place within a colliery holding, means: (i) the colliery holder, if the colliery holder nominated himself, herself or itself as the operator of the coal operation under section 17 and that nomination was not rejected, or (ii) the person nominated by the colliery holder as the operator of the coal operation, and not rejected by the Chief Inspector, under section 17, or (iii) (Repealed) (b) in relation to any other coal operation, means the person with the day to day management of the coal operation."
The Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) replaced the Coal Mine Health and Safety Act 2002 (NSW). Section 7A of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) provides the definition of a "mine operator": "7A Meaning of 'mine operator' (1) In this Act - mine operator of a mine means - (a) the mine holder, or (b) if the mine holder has appointed, in accordance with the regulations, another person to be the mine operator, that other person. (2) The regulations may provide for the appointment of more than one mine operator for a mine (so that there are different mine operators for different parts of a mine) and for that purpose - (a) a reference in this Act or the regulations to the mine operator of a mine includes a reference to the mine operator of part of a mine, and (b) the functions of a mine operator of a mine are, in the case of a mine operator of part of a mine, functions in respect of that part of the mine. (3) The regulations may provide for the appointment of one person as the mine operator for more than one mine. In such a case all of the relevant mines are, for the purposes of this Act, to be treated as one mine."

[124]

Cross Appeal Between Titan and Mt Owen

In the cross appeal by Titan, the Court found in favour of Titan by a 2:1 majority (Brereton and Kirk JJA, Basten AJA dissenting).
In the primary judgment, liability was apportioned to Titan based on Mt Owen's failure to stipulate in the Job Safety Analysis (JSA) the requirement that no implement movement should occur while tradesmen were within the footprint of the bulldozer. The JSA contained detailed directions and control measures for the steps to be undertaken while carrying out maintenance on the bulldozer. However, the JSA did not specifically restate a requirement in another procedure applicable to the bulldozer maintenance task, that there be no equipment movement while personnel were within the bulldozer's footprint.
In finding that Titan was negligent, the primary judge said at [77]: "As an employer of, inter alia, diesel mechanics within the mining industry, Titan would be aware of the matters relevant to my decision about foreseeability, significance of risk and available precautions that I have set out above dealing with the liability of Mt Owen. On the same basis I am of the view that Titan is negligent."
However, the majority in the Court of Appeal found that "no more was required" to instruct the workers about what had to be done, given the "clear requirement stipulated in the JSA, which no-one suggested they did not understand" (at [16]).
Brereton JA explained at [19] that the crew members had been taken through the JSA before work commenced and that they "must all be taken to have been aware of its requirements". Brereton JA said that even if a further specification was included, it is not apparent that it would have made any difference, with Mt Owen submitting that, "the practical reality is that Kemp just did as he pleased in the execution of that work at the time, without reference to the requirements of either Mt Owen or Titan" (at [20]).
Brereton JA stated that the apportionment between Mt Owen and Titan "miscarried, by failure to have regard to the circumstances that the JSA was Mt Owen's document, prepared for a procedure required to be performed by Mt Owen on Mt Owen's site and equipment under Mt Owen's ultimate direction and control" (at [23]). Further, the majority found that Mr Parkes' employment had "been transferred to Mt Owen" which led to Titan's apportionment being assessed as nil (at [23]).
In the dissenting judgment, Basten AJA accepted the primary judge's conclusion that the JSA did not make the control measures imposed on the movement of equipment sufficiently clear as "none of the three men working on the machine took the view that they had to stand clear of its footprint whilst the implements were manoeuvred" (at [83]).
Basten AJA stated that owing to "the special duty that it owes to its employees, Titan was obliged to ensure that reasonable care be taken for the safety of Mr Parkes", and while the JSA was not Titan's document, that did not absolve it from responsibility (at [82]).
In dismissing the cross appeal, Basten JA explained at [84]-[85]: "84 Titan had accepted its responsibility to take steps to ensure a safe working environment for its employees and, as has been noted, formulated extensive safety protocols which were to apply unless those of the host employer were of an equal or more demanding standard. In order to ensure that that standard was fulfilled, Titan should have been alert to imprecision, ambiguity or uncertainty in the JSA. Accordingly, there was no error on the part of the trial judge in finding Titan liable. 85 Since both Titan and Mt Owen had the relevant legal authority to impose constraints on the activities of Titan's workers, in circumstances where Titan was able to take appropriate steps to carry out that function, there was no error in attributing equal responsibility to the host employer (Mt Owen) and the legal employer (Titan) for the injury to the plaintiff."
Basten AJA set out the legal principles of employers' liability. Importantly, the host employer and the legal employer both owe a non-delegable duty of care to workers. Citing TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 (Christie), Basten AJA said that "it was significant that the degree of control exercised by the host employer in Christie did not derogate from the general duty of care imposed on the legal employer" (at [75]).
The content of an employer's non-delegable duty is variable and may depend on the circumstances (at [78]). After discussing the authorities, Basten AJA said that "in each case the assessment of the content of the duty of care turned on the level of control which it was reasonably practicable for the employer to exercise" (at [81]).

[125]

Consideration

In Parkes, Titan successfully appealed and had its liability apportioned to 0% because the majority held that the JSA of Mt Owen sufficiently stipulated the procedures and risk controls for the bulldozer maintenance work.
The evidence in relation to the A5CC is distinguishable from the evidence in Parkes. In this case there was no evidence tendered to show what, if any, steps Downer Regional took to discharge its non-delegable duty owed to Mr Keogh. In Parkes, there was evidence that Titan had safety procedures which employees had to follow. Such a direction was included in the service agreements between Titan and Mt Owen. No evidence was adduced about terms of any agreement between the present parties for the provision of labour hire, nor was there any evidence of Mr Keogh's employment contract with Downer Regional.
An employer does not discharge its non-delegable duty or cease to have the duty simply by sending its employee to a host employer. For Downer Regional to have discharged its non-delegable duty, it must show that it took reasonable steps for the health and safety of Mr Keogh.
In Parkes, the evidence established that Titan regularly visited the Mt Owen site to perform safety checks and speak to employees. Titan also had its own work health and safety procedures and policies in place that its employees had to follow. These measures were relevant to whether or not Titan discharged its non-delegable duty owed to its employees. In contrast, there was no evidence that Downer Regional provided any health and safety procedures or information to its employees, provided any training to Mr Keogh, visited Boggabri, or provided any information, instruction, or training to its employees about the risks involved with working at Boggabri.
Mr Rowles' submission that this case is analogous to Parkes and that Downer Regional's liability should be apportioned as 0% is rejected. Titan's liability was only apportioned to 0% because the evidence showed that it had stringent safety procedures and that it regularly monitored Mt Owen's site to ensure the safety of its employees.
While the limited evidence shows that Downer EDI as a host employer provided Mr Keogh with all his training, that does not establish that Downer EDI had absolute control of the work conditions, nor does it absolve Downer Regional from performance of its non-delegable duty.
An employer's duty of care is not modified just because its employees are sent to work for a client. In such circumstances the employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care to its employees: Christie at [67].
Downer Regional was required to take reasonable steps to protect the health and safety of Mr Keogh while working at Boggabri. Whether an employer's non-delegable duty is discharged when an employee is working at a third party's premises depends on such matters as "the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from danger and various other factors": Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189, cited in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99.
To discharge its non-delegable duty, Downer Regional could have provided information and instruction to its employees about adequate personal protective equipment including respiratory protection, and required its workers to abide by those standards, unless Downer EDI had the same or better standards in place, as was the situation in Parkes.
Downer Regional could have ensured its employee's health and safety by requiring Downer EDI to improve its conditions or systems, and by not providing workers until Downer EDI made such improvements. Downer Regional had the power to prescribe, warn, command and enforce obedience.
As an employer of workers in the mining industry, Downer Regional should have been aware of the risks of coal dust, the foreseeability of the risk, the significance of the risk and the available precautions. To discharge its non-delegable duty, Downer Regional should have visited Boggabri to apprise itself of the conditions and risks to its employees placed at the mine. There was no evidence that it did so. The appalling conditions at the mine were plain for all to see.

[128]

Orders

The orders of the Tribunal are: 1. Judgment for the plaintiff against the first defendant in relation to mine dust exposure at the Poitrel and Moorvale Mines for $1,066,922.11, of which $830,800.00 is attributable to mine dust exposure at the Poitrel Mine and $236,122.11 is attributable to mine dust exposure at the Moorvale Mine. 2. Judgment for the plaintiff against the second defendant in relation to mine dust exposure at the Moorvale Mine for $236,122.11. 3. Judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $1,687,264.74. 4. Order that the dust-related conditions in respect of which an award of further damages may be made against the third defendant (arising from mine dust exposure at the Boggabri Mine) are: 1. Rheumatoid arthritis. 2. Scleroderma. 3. Progressive massive fibrosis. 4. Lung cancer. 1. In addition to order (3) above, judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Blackwater Mine for $326,489.82. 2. Judgment for the plaintiff against the fifth defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $783,963.46. 3. Declare that 100% of the sum awarded by the judgment against the fifth defendant is damages to which Part 3 Division 5 of the Workers Compensation Act 1987 (NSW) applies. 4. Order that the dust-related conditions in respect of which an award of further damages may be made against the fifth defendant (arising from mine dust exposure at the Boggabri Mine) are: 1. Rheumatoid arthritis. 2. Scleroderma. 3. Progressive massive fibrosis. 4. Lung cancer. 1. Order the first, second, third and fifth defendants to pay the costs of the plaintiff. 2. Judgment for the fifth defendant against the third defendant on the Amended Fifth Cross Claim in relation to mine dust exposure at the Boggabri Mine for $548,774.42. 3. Order the third defendant to pay the costs of the fifth defendant of and incidental to the Amended Fifth Cross Claim. 4. Grant leave to all defendants to file cross claims within 28 days, if so advised. If any further cross claims are filed, the parties are to inform my Associate so that the cross claims can be listed before me for case management. 5. Liberty to restore the proceedings before me if any party seeks a different costs order based upon an Offer of Compromise or other offer.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2024

Parties

Applicant/Plaintiff:

Keogh

Respondent/Defendant:

CPB Contractors Pty Ltd & Ors

Legislation Cited (10)

Coal Mine Health and Safety Act 2002(NSW)

Workers Compensation Legislation Further Amendment Act 2001(NSW)

Workers Compensation and Rehabilitation Act 2003(Qld)

Workers Compensation Act 1987(NSW)

Civil Procedure Act 2005(NSW)

Dust Diseases Tribunal Act 1989(NSW)

Law Reform (Miscellaneous Provisions) Act 1946(NSW)

Motor Accidents Compensation Act 1999(NSW)

Workers Compensation Legislation Amendment Act 2012(NSW)

Work Health and Safety (Mines and Petroleum Sites) Act 2013(NSW)

Cases Cited (22)

s - modified common law damages provisions - whether cap on damages is on nett or gross earnings - whether cap on damages includes or excludes superannuation - whether claim is statute barred - whether provisional damages can be awarded NEGLIGENCE - apportionment between tortfeasors - employer's non-delegable duty of care DAMAGES - general damages - past and future economic loss - past and future superannuation - medical costs - loss of life expectancy - Fox v Wood damages - pain and suffering - psychiatric injury - apportionment of psychiatric injury Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Coal Mine Health and Safety Act 2002 (NSW) Dust Diseases Tribunal Act 1989 (NSW), ss 10(4), 10(5),11A, 12A Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) Motor Accidents Compensation Act 1999 (NSW), s 125(1) Workers Compensation Act 1987 (NSW), ss 4, 15, 16, 35, 149(1), 151D, 151E, 151F, 151G, 151H, 151I, 151J, 151L, 151M, 151S, 151Z, Part 5 Div 3, Pt 5 Div 4, Schedule 6 Part 18, cl 3 Workers Compensation and Rehabilitation Act 2003 (QLD), ss 36A, 305B, 305C, 305D, 306A(1)(a), 306C, 306D, 306E, 306F, 306G, 306H, Part 9 Div 3 Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 6, Pt 19H, cl 26, Sch 7(1) Workers Compensation Legislation Further Amendment Act 2001 (NSW), s 151G Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 7A Cases Cited: Agresta v Sydney Water Corporation [2004] NSWDDT 8 BAE Systems (Operations) Ltd v Konczac [2017] EWCA Civ 118 BB v Helena College Council [2021] WADC 42 BHP Coal Pty Ltd Re The BMA Enterprise Agreement 2022 [2023] FWCA 115 Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189 DC v New South Wales [2016] NSWCA 198 Dingle v Associated Newspapers Ltd [1961] 2 Q.B. 163 Foster & Anor v Cameron [2011] QCA 48 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 Headon v Amaca Pty Ltd [2022] NSWDDT 5 Kaplantzi & Anor v Pascoe [2003] NSWCA 386 Katidis v Meggitt Overseas Ltd (No. 2) [1995] NSWDDT 1 Macquarie Pathology Service Pty Ltd v Sullivan [1995] NSWCA 540 McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341 Mohr v Berrigan Quarries Pty Ltd [1995] NSW DDT 2 Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 Oxley County Council v McDonald [1999] BSWCA 126 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Qantas Airways Ltd v Lisica [2007] NSWCA 371 Reilly v Malabar Electric Pty Ltd [2011] NSWDDT 9 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Thompson v Smiths Shiprepairers Ltd [1984] QB 405 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Texts Cited: Black's Medical Dictionary, 38th ed (1995) Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013) Queensland Parliamentary Coal Workers' Pneumoconiosis Select Committee, Black Lung White Lies: Inquiry into the Re-Identification of Coal Workers' Pneumoconiosis in Queensland, Report No. 2, 55th Parliament (May 2017) R McBean et al, "Radiological Appearance of Coal Mine Dust Lung Disease in Australian Workers" (2018) 62(6) Journal of Medical Imaging and Radiation Oncology 794 The Penguin Medical Encyclopedia, 2nd ed (1982) State Insurance Regulatory Authority, Workers Compensation Benefits Guide, April 2024 Category: Principal judgment Parties: Craig Andrew Keogh (Plaintiff) CPB Contractors Pty Ltd (First Defendant) Campbell Mining Services Pty Ltd (Second Defendant) Downer EDI Mining Pty Ltd (Third Defendant) Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant) Representation: Counsel: S Tzouganatos/V Boutas (Plaintiff) D Talintyre (First Defendant re Poitrel Mine) I Griscti (First Defendant re Moorvale Mine) D Talintyre (Second Defendant re Moorvale Mine)) D Talintyre (Third Defendant re Blackwater Mine) G Rundle (Third Defendant re Boggabri Mine) T Rowles (Fifth Defendant re Boggabri Mine)