MacKay v EDMS Human Capital Pty Limited

District Court of NSW|2015-03-25

Judgment

HIS HONOUR: On 17 July 2014 the plaintiff, Mr Jesse Brenden Mackay filed a statement of claim in this Court and entered it in the Coal Miners' Workers Compensation List. The plaintiff was granted leave to proceed on an amended statement of claim filed on 10 March 2015. The only relevant amendment was to par 1 of the statement of claim and clearly was in response to criticism I had made of a pleading in Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3 at [34].
The plaintiff claims lump sum compensation under s 66 for 30% loss of efficient use of his left leg at or above the knee; 15% loss of efficient use of the left leg below the knee; 30% loss of efficient use of the right leg at or above the knee; 15% loss of efficient use of the right leg below the knee and 30% of the efficient use of his left arm at or above the elbow and a consequential lump sum under s 67 of the Workers Compensation Act 1987 for 50% of a most extreme case of pain and suffering, anxiety and distress resulting from the losses claimed. I should point out that it is completely erroneous in law to make a claim in respect of both a leg at or above the knee and a leg below the knee, the leg at or above the knee means the whole leg. That is established by Stokes v Brambles Australia Ltd (1994) 10 NSWCCR 515.

The issue

The issue currently before me is that tendered by the amended defence filed on 19 March 2015 upon which I granted leave to the defendant to rely. The first two paragraphs of that defence are these: "1. That the Plaintiff is not a coal miner for the purposes of Workers Compensation Act 1987. 2. The Defendant does not admit that the plaintiff was on a periodic journey to Wambo Colliery at the time of his injury." It is only those issues that I am called upon to determine in the current hearing. It is a hearing of a separate issue pursuant to Uniform Civil Procedure Rules 2005, r 28.2. The case is similar but not identical to the case of Butt v Liebherr Australia Pty Ltd.

The plaintiff's background

The plaintiff was born on 11 May 1985 and is currently 29 years old. He attended the Whitebridge High School leaving that institution in 2002. He then enlisted in the Australian Army. There is no direct evidence from the plaintiff about his service in the Army but there is before me a medical report from Dr Richard Powell dated 14 November 2014, tendered in the defendant's case. That report contains this piece of history: "Mr Mackay injured his left shoulder whilst a member of the SAS in Afghanistan. He was struck by a low speed bullet from a rifle. The bullet appears to have lodged in the proximal humerus in the region of the greater tuberosity and was removed at that time. He had one week off work and returned to pre-injury duties. He was medically discharged from the Australian Defence Force on the basis of PTSD in 2007." It can be seen therefore that the plaintiff saw active service whilst a member of the Australian Army and was medically discharged for what I infer was a duty related psychiatric condition. The plaintiff did tell me that he was in the SAS for four years during his six years in total with the Army and during his service qualified to be a diesel mechanic.
After discharge from the Army the plaintiff looked for work as a diesel mechanic. He obtained employment with Sherrin Rentals Pty Ltd, a Brisbane based company. He worked in the Hunter Valley. He worked as a field service fitter and his work involved work for the mining industry together with other civil engineering work. He told me that he was the only employee of Sherrin Rentals Pty Ltd in New South Wales and that in addition to working in the Hunter Valley he also worked at North Parkes, Orange and Holbrook. The plaintiff then commenced self-employment again as a field service fitter. He traded as Jesse Mackay Mechanical. He worked at a number of mining sites including the Mount Arthur mine, the Ravensworth mine and for Hunter Valley Operations, which was near the Ravensworth Colliery. He told me that, as far as his duties in the mining industry were concerned, he worked on dump trucks, graders and loaders. He was essentially called in as a contractor to carry out breakdown work.

Commencement of employment with the defendant

In early 2012 he saw advertised on SEEK a job for a fitter required to work on drilling rigs. He applied online for the job by sending his resume to the advertiser via email. On 28 March 2012 he received a telephone call from Mr Greg Kitchen who identified himself as the managing director of EDMS. The current defendant is EDMS Human Capital Pty Ltd. An inference can be drawn that the named defendant is one of a group of companies all containing in their title the letters EDMS. That has been explained as being an acronym for Every Day Mine Services. In the telephone discussion on 28 March or perhaps at the later interview, the plaintiff was told by Mr Kitchen that he was looking for a field service drill fitter but he was more interested in the plaintiff's qualifications as a fitter/mechanic than in prior experience with drilling rigs. The plaintiff attended upon Mr Kitchen at the EDMS depot at 7 Enterprise Drive, Maison Dieu. That town or village or locality is 12 kilometres northwest of Singleton on the northern bank of the Hunter River. There is reference in the evidence to a Singleton yard of EDMS, again northwest of Singleton. Whether that is actually at Maison Dieu or some other locality northwest of Singleton is unclear.
Mount Thorley is 11 kilometres south-southwest of Singleton on the Golden Highway. The next locality on the Golden Highway to the west of Mount Thorley is Warkworth, ten kilometres from Mount Thorley. According to the plaintiff's estimate Wambo mine is between Mount Thorley and Warkworth, approximately three kilometres from Mount Thorley and therefore some seven kilometres south of Warkworth. There are coalmines at Mount Thorley, at Wambo and at Warkworth which could all be seen to be in the vicinity of Singleton. Access to the mines at Mount Thorley, Wambo and Warkworth can all be gained from the Golden Highway. If one proceeds northwest from Singleton on the New England Highway one comes to other mining tenements such as the Ravensworth mine.
I return to the interview with the plaintiff, both the telephonic interview on 28 March 2012 and the subsequent interview in person with Mr Kitchen. Mr Kitchen told the plaintiff that the operations of EDMS were expanding and that he needed somebody to work for EDMS at the Wambo Colliery. The plaintiff, all told, spent one hour on the afternoon of 28 March 2012 with Mr Kitchen. Mr Kitchen told the plaintiff that he wished him to start "straight away" and the plaintiff replied that he would "love to". There was then a discussion about the plaintiff's being provided with a company motor vehicle to which he received a positive response. However, the plaintiff was told by Mr Kitchen that prior to his joining EDMS he would have to undergo a medical examination.
The plaintiff was sent a letter bearing date 2 April 2012. It is under the hand of Janice Shackley who described herself as the "Human Resource Manager". The letter is headed, "Offer of Employment with EDMS Human Capital". It formally offers the plaintiff a position as a fitter "based at Singleton". The plaintiff's remuneration is then stated. The letter continues thus: "This offer is dependent on your being declared fit to undertake the duties of the position by an authorised medical practitioner. Details regarding the medical will follow. During the recruitment process you have stated that you hold the certificates and licences required to carry out the role that you have been offered. You will be required to produce the originals or verified copies of these certificates and licences prior to the commencement of work with EDMS. Failure to supply the documentation will result in the withdrawal of this offer." The penultimate paragraph of the letter then follows stating the citizenship or residence requirements for a person working for EDMS. The ultimate paragraph of the letter invites contact with Ms Shackley should the plaintiff have any questions and congratulates him on his "new role".
The plaintiff was unsure whether he received that letter before or after he received an email from Kristie Ord whose email address clearly indicates her working for EDMS. The subject of the email is: "Details for medical/start date/PPE-Newcastle". The first paragraph of the email advised the plaintiff that arrangements had been made for him to undergo a medical assessment in Newcastle on Friday 13 April 2012 at 10am. The same paragraph of the letter told the plaintiff what to take. The next paragraph commences thus: "The medical is a design by the NSW Coal Board to assess your fitness to safely undertake the position that you are being considered for. You'll be asked to take an instant Drug and Alcohol test." The paragraph goes on to give the plaintiff certain advice as to what he should or should not ingest prior to going to the medical examination. The next relevant heading in the email is this: "Start date/Induction". Under that heading is this matter: "If you are cleared as fit by the medical your start/induction date will be Monday 16 April. Please be at the Wambo mine site at 7.10am on induction day for a 7.30am start and on working days arrive at 6.50am for a 7am start. I have attached a map with directions for you, the site is off the Golden Highway. When you come to Correct Road, go up 100 metres and you will see the EDMS sign and the road to follow to the site. If you have any problems on the day please call Wayne, HSE Advisor, on [telephone number]." PPE is an acronym for personal protection equipment. This apparently is the modern euphemism for a uniform. Why not use three words when one would suffice? When the three words becomes too long, one makes an acronym of it. Such widespread practices foreshadow the demise of the English language. The plaintiff was told to complete a PPE order form which was attached to the email and send it back to Ms Ord so that his uniform could be provided as soon as possible. The final paragraph of the email contains a heading, "EDMS". It is in the following terms: "It would be a useful to do some further research about the company prior to induction and start date. The website is www.edmsl.com.au and we have just merged with a company called Hughes Drilling, their website is http://www.hughesdrilling.com.au/. This merger has just been settled so EDMS will in fact be called Hughes within a few months." The merger of EDMS and Hughes Drilling obviously speaks of the expansion of the business of EDMS of which the plaintiff was told by Mr Kitchen on 28 March 2012.
The plaintiff attended the medical examination fixed for 13 April at 10am. The documentation following upon that examination is exhibit K. Most pages of the form are headed, "NSW Coal Industry Pre-Placement Health Surveillance Assessment". Another page is headed, "Coal Services (NSW) Medical Assessment (Order 41)". The first page is a consent to undergo medical assessment. Par 6 is this: "I consent to the assessing Doctor releasing my medical data to Coal Services Pty Ltd for inclusion in the NSW coal mineworkers' health database for the purpose of ongoing health surveillance." The second page of the document headed, "Coal Services (NSW) Medical Assessment (Order 41)" is this: "I, Sheela Kulasingam, a registered medical practitioner, certify that on 13/4/12 I personally examined Jesse Brenden Mackay for the NSW Coal Industry medical with full compliance with Order 41 and the information recorded above arose from that examination." That declaration has been signed by the examining medical practitioner whose name I have just quoted. It is clear that the plaintiff successfully completed that medical examination.
On 16 April 2012 in accordance with the direction given to the plaintiff by Kristie Ord in her email, the plaintiff travelled to the Wambo Colliery. It was raining on that day. The plaintiff did not drive his motorcycle to the Colliery but rather his partner's car because of the rain. The plaintiff was then living at 29 Lindsay Avenue, Valentine, a suburb of Newcastle on the eastern shore of Lake Macquarie just north of North Belmont. At this stage in his evidence-in-chief the plaintiff told me of the route he took from his place of abode to the Wambo Colliery. It needs to be considered in light of the dicta in Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427.

The route to the Wambo Colliery

The plaintiff drove down Lindsay Avenue and eventually turned left onto route 131 which is known locally as Croudace Bay Road. The plaintiff then drove north along route 131. The name of the road changes from Croudace Bay Road to Macquarie Drive then changes its name to Bareki Road then it resumes the name of Macquarie Road and once it passes into the suburb of Warner Bay it takes the name of the Esplanade and under that name it makes a T-intersection with route 133 which the plaintiff described as Five Islands Road onto which the plaintiff turned right. However, the aforementioned Five Islands Road stops at the T-intersection with the Esplanade and thereafter is known as T C Frith Avenue. It then becomes known as Lake Road but eventually reaches a roundabout in Glendale, where route 133 crosses route 128. That is known immediately after the intersection with route 133 as Main Road, if one turns left, as the plaintiff did.
The plaintiff continued along route 128 towards Kurri Kurri. Eventually route 128 is known as John Booth Drive. After crossing over the Sydney-Newcastle Freeway, John Booth Drive goes over Mount Sugarloaf before eventually reaching Buchanan. The plaintiff continued on to Kurri Kurri on route 132, route 128 intersecting with route 132 at Buchanan. On route 132 the plaintiff went through Kurri Kurri to the village of Weston and he then followed rural roads to reach Wine Country Drive near North Rothbury. He then drove to Branxton where he joined the New England Highway and followed that for 11 kilometres to the intersection of the New England Highway and the Golden Highway and then proceeded for approximately 16 kilometres along the Golden Highway to the turn off to the Wambo Colliery which was on his left.
I have not had an opportunity to calculate the total distance of that trip. Suffice it to say it would have been longer than the trip undertaken by Mr Butt between his place of abode in the suburb of Gillieston Heights, two kilometres south of Maitland, to the Mount Arthur Colliery. That trip was a distance of a 97 kilometres. The current plaintiff's journey would have been much longer than that. The plaintiff turned left off the Golden Highway onto the Wambo Colliery tenement. The fence around that tenement was set about ten metres away from the highway, that is, ten metres south of the highway. The main car park at the Colliery was some two kilometres from the highway, that is well within the mining tenement. EDMS had its own depot on the mining tenement set apart from the mine operators' buildings but well within the mining tenement. The plaintiff described the EDMS site as four demountable buildings.

The first days of work

He enquired of someone at that site how to find "Wayne". It transpires that the person of whom the plaintiff made the enquiry was Mr Mick Marychurch, the incumbent fitter/mechanic for EDMS. Mr Marychurch directed the plaintiff to Mr Wayne Clark who was the defendant's Health, Safety and Environment coordinator. The operator of the Wambo mine is not EDMS but Peabody Resources. The inference to be drawn is that EDMS was a contractor to the mine operator. After introducing himself to Mr Clark, the plaintiff was advised by Mr Clark that he was not ready for him. The plaintiff accompanied Mr Clark to Peabody's buildings where the plaintiff sat a computerised visitor induction. That was an induction designed only for people visiting the site, not the usual "site induction" required for somebody to be permitted to work on the mining tenement, to work in either the underground operation at Wambo or in the open cut operation at the Colliery. The plaintiff thought that the visitor induction took about one hour to complete although Mr Clark thought it was much shorter than that. Nothing turns on that. It is clear that the plaintiff underwent the visitor induction, not the site induction required for persons to work on the mining tenement. It would appear that Mr Clark had not arranged for the plaintiff to undergo the site induction on the morning of 16 April 2012.
The plaintiff then returned with Mr Clark to the EDMS depot at the Colliery. He then went through what has been referred to as the EDMS induction. Papers relating to that induction became exhibit L. The document commences with the EDMS Limited logo and then appear the words, "Every Day Mine Services Limited Policies". The plaintiff was required to complete 17 different assessments. The first is headed: "Company General Induction". It commences thus: "The following assessment is a guide to ensure you fully understand the Safety and Health requirements for GOS Drilling and/or Every Day Mine Services." The next item completed by the plaintiff is headed, "Non-Rig Worksite Personnel-Visitors." The following have all been marked as being "competent": "Has been advised that under no circumstances is he/she to climb on the drill rig deck, unless authorised by the driller if applicable. Has been made aware of the location of exhausts and the danger of hot exhausts, both on the rig and ancillary compressors, cement mixers, Haul trucks, agitators etc. Knows where to stand so that he/she can be seen by the driller/air legger/loader operator etc at all times. Has been made aware of the location of rotating equipment and the associated dangers. Has been made aware of the dangers of outriggers/jacklegs, particularly when the equipment is being set up. Is aware that under no circumstances other than in an emergency is he/she to attempt to work the control panel of the rig/item of plant. There is to be no climbing up the mast under any circumstances or over any height at or above 1.8 metres total."
The next relevant item is headed: "Training Package" and concerns "Light Vehicle Surface". The latter referring to light vehicles driven on the surface of, from what I shall now quote, a mine. The introduction to this training package is this: "The purpose of this training package is to provide the necessary skills and knowledge to safely and productively operate a Light Vehicle, on the surface at mining operations throughout Australia where GOS/EDMS are contracted to." I should forebear from commenting on the lack of grammar used in that introduction. Under the heading "Reference Material" there is an introduction. It contains this matter: "The Training package content followed will allow and train an employee in the safe usage of a Light Vehicle on a mine site; it covers all applicable aspects to Safety operate the machine on the Surface on a mine lease. Pre-start checking the vehicle, operating it in a responsible manner, being prepared for emergencies, are competencies that are required for everyone in a safe production mine. This module is designed to prepare the trainee for adhering to a methodical approach in every job." On the same page it is clearly stated that only persons who hold a current certificate of competency obtained from EDMS may operate a light vehicle on a mining lease. Included in the material supplied to the trainee was the specification that the speed limit for vehicles in a mine is 25 kilometres per hour unless signposted otherwise. It is also pointed out that coasting a vehicle on a mine lease constitutes an offence. It is pointed out that every person at a mine must pay attention and obey all warning signs. On another page it is reinforced, by being printed in capital letters, that the driver of a light vehicle is to leave the key in the ignition when a vehicle is left unattended on a mine lease except when parked in main car parking bays. On another page of the training package for light vehicles is this prescription: "Prior to any equipment being towed on a mine lease the SSE [Site Senior Executive] must be contacted by the GOS/EDMS supervisor and the SSE must notify in writing their acceptance of the task that is to be undertaken. Once approval was obtained or in some cases prior the Supervisor and all staff that are to be involved in the towing must carry out a Risk assessment stating how they are to carry out the towing and where they are towing the piece/s of equipment to and from." The inference to be drawn is that the SSE is a creature of the mine operator rather than some functionary within EDMS.
A number of the other induction or assessment packages that the plaintiff was required to perform are referable to certain types of equipment commonly found on mining sites. The plaintiff took until approximately 4.30pm on 16 April 2012 to complete the EDMS induction. Because he had not completed the site induction at the Wambo Colliery, the plaintiff was not entitled to carry out work there. On the afternoon of 16 April 2012 the plaintiff was told by Mr Clark to go to the defendant's Singleton yard on the following day. The plaintiff did so. At the Singleton yard the plaintiff observed contractors working on a surface drilling rig. The plaintiff was not familiar with that surface drilling rig and observed the contractors performing that work. The plaintiff did that for the entire day. Again, the plaintiff reported to the Singleton yard on Wednesday 18 April. On that day the plaintiff met a gentleman whose name he does not remember or may not have been told. The plaintiff described that man as being tall, in his early 30s, having short, blonde hair. The man was clean shaven and his build was thin. He told the plaintiff that he wanted him to go to Wambo Colliery on the following day and to observe Mr Marychurch's routine at the Wambo Colliery. That direction was given to the plaintiff at about 4.45pm on 18 April. The plaintiff knew Mr Marychurch, having met him on 16 April, as I earlier pointed out, and knew that he was another fitter/mechanic employed by the defendant and that he, the plaintiff, was to do work similar to or the same as that performed by Mr Marychurch.

The accident

On Thursday 19 April 2012 the plaintiff left his place of abode at Valentine to drive to the Wambo Colliery. On this occasion he rode his motorcycle as his partner needed her car in order to go to her place of employment. The plaintiff followed the route I have earlier described between his home at Valentine and the Wambo Colliery. Whilst traversing Mount Sugarloaf the plaintiff was involved in an accident. It appears to me that the plaintiff's accident occurred when he was less than one third of the way between his place of abode and the Wambo Colliery. When the plaintiff returned to work after the motor accident in September 2012 he completed an incident report form. He described the sequence of events thus: "Travelling to work. Lost control of motor cycle on slippery corner. Veered onto wrong side of road. Head-on collision with blue Toyota HiLux." Dr Powell in his report of 14 November 2014 records the history thus: "Whilst negotiating a bend in the wet he lost traction in the rear tyre, overcorrected and crossed to the wrong side of the road colliding with a Toyota HiLux." Emergency services were called. The plaintiff was conveyed by ambulance to the John Hunter Hospital. The plaintiff was admitted on 19 April 2012 reaching the hospital at 6.55am. He was discharged from the John Hunter Hospital on 7 May 2012 at 10.44 by being taken to the Hunter Valley Private Hospital. All told, the plaintiff was in hospital for two and a half months after this serious motor cycle accident.
Dr Powell's report sums up the plaintiff's position thus: "He sustained the following injuries: Abdominal trauma resulting in a liver laceration which was managed conservatively Fracture of the left femur treated surgically by Dr [Balough] with an intermedullary nail. A ruptured femoral artery was also identified and repaired at the time of the original surgery. He sustained multiple fractures around both knees including tibial plateau fractures which were treated surgically by Dr [Balough] with open reduction and internal fixation. Left shoulder injury avulsion fracture of the greater tuberosity in association with a rotator cuff tear. This was treated surgically by Dr Posel several months after the accident with a left shoulder arthroscopy and rotator cuff repair. As a result of his multiple lower limb injuries Mr Mackay had bed rest for several months. During that time treatment was limited to hydrotherapy and physiotherapy. He completed rehabilitation through the Hunter Valley Private Hospital under the care of Dr Laycock. Rehabilitation continued as an outpatient."
The plaintiff was paid wages by the defendant for the fortnight commencing on Monday 16 April 2012. His pay slip is exhibit D. That shows his "location" as being "Wambo".

Consideration

I am persuaded on the balance of probabilities that the plaintiff was employed by the defendant with the intention that he perform work for it at the Wambo Colliery. It appears likely to me that the plaintiff was supposed to undergo site induction at the Wambo Colliery on the morning of 16 April 2012 but for some administrative reason that could not occur. Perhaps it was because Mr Clark had failed to organise such induction. I am persuaded on the balance of probabilities the plaintiff's working at the Singleton yard on 17 and 18 April was because there was no work he could usefully do at the Wambo Colliery on those days. I accept the plaintiff's evidence that he was told by a supervisor to attend at the Wambo Colliery on Thursday 19 April 2012, and that the plaintiff left his place of abode with the intention of travelling to the Wambo Colliery.
A submission has been made that the plaintiff was not going to work at the Wambo Colliery because he had not performed his site induction necessary to work at the Wambo Colliery. In one sense that is correct. However, in the broad sense it is not. A common feature of employment is for employees to learn their job on/at a job site by watching other people do their work. For example, when a judge appoints a new associate the Crown permits the judge to have two associates for two days. The idea is that the new associate observes the departing associate perform his or her functions, so that he or she, being the new associate, can learn what the functions of an associate are. It is common for workers in many industries to watch others work in order to understand what they are to do and how they are to do it. The plaintiff was instructed to attend at the Wambo Colliery in order to observe Mr Marychurch carrying out his routine as a mechanic/fitter for the defendant, a role being taken up by the plaintiff. I am persuaded that observing Mr Marychurch carrying out his job at the Wambo Colliery would be part of the plaintiff's service to the defendant, part of his contract of employment. The plaintiff's visitor induction would permit him to observe Mr Marychurch working at the colliery, although the plaintiff would not be able to assist him by doing any work himself. The plaintiff would, through Mr Marychurch, acquire some familiarity with the layout of the Wambo Colliery, the set out of the mine, where its various facilities were and could observe how Mr Marychurch conformed with the requirements incumbent upon those working in or about a coal mine.
I am persuaded on the balance of probabilities that the plaintiff was travelling from his place of abode to the Wambo Colliery to perform work in or about a coal mine, work required of him by his employer at the direction given to the plaintiff by the supervisor on the afternoon of 18 April 2012.
Mr Benson, on behalf of the plaintiff, has submitted that the plaintiff is entitled to claim benefits as a "coal miner" in accordance with my holding in Butt v Liebherr Australia Pty Limited. The defendant says otherwise. The defendant relies upon the dictum of Meagher JA at [39] of Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427, and also the dictum of Sackville AJA at [47] of the same judgment. Mr Odling has formally submitted that my decision in Butt v Liebherr Australia Pty Limited is wrong.
In Butt at [31] I quoted s 10(1) of the Workers' Compensation Act 1987. It is worth again remembering its contents: "A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." That is a deeming provision. It deems an injury which is not one arising out of or in the course of employment to be such an injury but only for the purposes of the Workers Compensation Act 1987. It could not be relied upon by Mr Baggs because Mr Baggs was not claiming statutory benefits under the Workers Compensation Act 1987, but rather, damages at common law for the vicarious liability of his employer for the negligent driving of his fellow employee.
In [32] of Butt I provided three reasons to distinguish Butt's case from Baggs' case. Those distinctions were these: "(a) Baggs is concerned with an action for damages for personal injury for the tort of negligence, not with a claim for statutory benefits under the 1987 Act; (b) even if that is an insufficient distinction, the facts of this case offer another distinction: the plaintiff only worked for the defendant at the Mount Arthur colliery and nowhere else he falls within [43] of the judgment of Sackville AJA; (c) Mr Baggs had not yet commenced any work at the Pike River coalmine. The present plaintiff had commenced working at the Mount Arthur colliery on 17 May 2010 and was returning to resume his normal duties at the colliery on 12 October 2010." In the current case there is the first discrimen which I identified in Butt. There is not, however, the second discrimen but there is another. The plaintiff had already attended at the Wambo Colliery on 16 April. By reason of some administrative error he could not undergo site induction on that day as had clearly been intended by Ms Ord in her email communication to the plaintiff. The plaintiff had been temporarily sent to the Singleton yard but on the day of his accident was returning to carry out work at the Wambo Colliery. Further, it is clear that the plaintiff was employed by the defendant through Mr Kitchen, to work at the Wambo Colliery and that is confirmed by the initial direction given to the plaintiff by Ms Ord and by the identification of his worksite as being the Wambo Colliery on his payslip. The plaintiff's attendances at the Singleton yard could be seen as a temporary aberration from what each party, that is, both the plaintiff and the defendant, intended.
The third discrimen in Butt's case is, again, applicable because the plaintiff in the current case had attended the Wambo Colliery on his first day of employment with the defendant and was going there again on 19 April 2012; the interim being an aberration from the common understanding of the plaintiff and the defendant.
If the submissions put to me by the defendant in Butt and the defendant in the current matter were correct then, applying Baggs literally, no coal miner would ever be entitled to coal miner benefits for injury on a periodic journey between his place of abode and place of employment unless he or she crossed over the boundary of the mining tenement, in which case he or she was in the course of his or her employment in any event and one would not need recourse to the journey provisions. That, to me, is inconsistent with the scheme of the Act to provide benefits to coal miners as coal miners on their periodic journeys. In that regard I refer to that part of my judgment in Butt commencing at [15] under the heading "Journey provisions for coal miners".
I accordingly find that on 19 April 2012 the plaintiff sustained personal injury in a motor cycle accident on a periodic journey between his place of abode at Valentine and his place of employment at Wambo Colliery in order to work in or about a coal mine. The plaintiff is entitled to recover lump sum compensation under s 66 and 67 of the Workers' Compensation Act 1987 as they apply to persons employed in or about a coal mine.

Other arguments

I should just address a few minor points. After his accident, the plaintiff had brought to him in hospital by his partner, Ms Skye Maybury, a written employment agreement which became exhibit E. It had been posted to the plaintiff's place of abode. It bears the typed date 13 April 2012 and has been signed by Mr Andrew Drake, who is described in the document as the CEO, (chief executive officer) and by Ms Janice Shackley, to whom I have earlier referred. Each of those persons dated the document 12 April 2012. Both of the handwritten dates and the typewritten date precede the commencement by the plaintiff of his work at the Wambo Colliery on 16 April 2012. The document is a general document, that is, it is not specific to the plaintiff's work but is in a form probably used for countless employees in various occupations. It specifies a location in cl 1.4. That clause bears the heading "Location" and states this, "Initially, you will work at Singleton however; the company may direct you to perform work at other locations, provided that such a direct direction does not impose unreasonable hardship on you." For reasons which I have previously given, "Singleton" was a general description. Both Maison Dieu and the workshop outside of Singleton itself could be described as Singleton, as could be nearby mines such as Mount Thorley, Wambo, Warkworth and Ravensworth. Nothing, in my view, turns on that.
The defendant also relies upon a "Position Description" for a Heavy Diesel Fitter that stipulates the "Location as the Singleton Yard" and required the heavy diesel fitter to report to the Workshop Supervisor. However, this position description was approved on 9 February 2012 prior to the plaintiff's being engaged specifically to work at the Wambo Colliery. There is no evidence that it was designed specifically for the plaintiff. Again, the document was only seen by the plaintiff yesterday morning when it was shown to him by his counsel and the inference to be drawn from that is that it was never given to him at any time whilst he was employed by the defendant.
The final thing I should say is that Mr Odling tendered the report of Dr Powell from which I have earlier cited because it was asserted that it contained an admission. At the foot of p 2 commences the history taken by the Doctor. I have quoted the second sentence of that history to describe how the plaintiff's accident occurred. The first sentence of that history is this: "Mr Mackay is a 29 year old right hand dominant gentleman who had been employed by EDMS Human Capital Pty Limited for one week prior to the motor bike accident that occurred whilst travelling to work on 19 April 2012." The final paragraph under the heading "History" commences with these two sentences: "At the time of the motor vehicle accident, Mr Mackay was riding on his way to the workshop. The company did provide services to the mining industry although at the time he had not been certified to work underground." Mr Odling cross-examined the plaintiff as to the alleged admission that the plaintiff was riding "to the workshop" which the defendant asked me to infer meant what has otherwise been described as the Singleton yard. The second sentence is incorrect in that although the plaintiff had not been certified to work underground he was not employed to work underground but he was employed to work in the open cut operation at Wambo Colliery. The intention was that he work in the open cut mine rather than underground. In any event, as no site induction had been performed, the plaintiff could neither work underground nor above ground. The inference to be drawn is the words "work underground" are the Doctor's interpretation of what the plaintiff told him. Equally, the words, "to the workshop" may be the Doctor's interpretation of what he was actually told by the plaintiff. Those words "to the workshop" are to be contrasted with the words "to work" occurring in the first paragraph of the history. The plaintiff's counsel called for the production of all the documentation provided to Dr Powell and the letter of instructions to him. The call was not answered. In the circumstances, I limited the use to which the history could be put by precluding that history as any evidence of any fact in issue between the parties, in accordance with s 136 of the Evidence Act 1995. In any event, even if I had not made that limitation I would not have given to the words "to the workshop" the meaning assigned to them by Mr Odling; nor, if I did, would I have given it any weight in light of the plaintiff's sworn evidence. One might refer to the EDMS site at the Wambo Colliery as a "workshop", "yard", or "depot" and the word was not used by either the plaintiff or Mr Clark to describe what was always described as working at the Singleton yard.

Missing witnesses

Are any further reasons for judgment required? ODLING: No, your Honour. BENSON: Would your Honour feel it necessary to refer to the fact as it was submitted that the defendant failed to call Mr Kitchen and Ms Ord?
HIS HONOUR: Mr Odling indicated at one stage that he was taken by surprise by the amendment made to the statement of claim, the amendment which I stated much earlier arose from my criticism of pleading in Butt. However, no particulars had been requested of the earlier plaint: so I am told by counsel. Furthermore, the unidentified supervisor who gave the plaintiff a direction to attend the Wambo Colliery could have been identified by somebody who regularly worked at the Singleton yard, who was certainly not Mr Clark, and could easily have been identified by some person in authority such as Mr Kitchen, Ms Shackley, the Human Resources Manager, or Mr Andrew Drake, the CEO who signed the plaintiff's employment agreement on 12 April 2012. Furthermore, if there was any dispute that the plaintiff had been specifically recruited to work at the Wambo Colliery one would have thought that Mr Kitchen would have been called to deny the conversation deposed to by the plaintiff; or Ms Shackley would have been called to deny that the plaintiff was employed specifically to work at the Wambo Colliery. However, they were not called, nor was their absence explained, nor was any adjournment sought in order that they could be called.

Relisting

Are you ready to take a date? BENSON: Yes, your Honour. HIS HONOUR: It's outrageous that you should claim both above the knee and below the knee as if they're different bits of anatomy. BENSON: I'll have that corrected, your Honour. HIS HONOUR: I decided that in 1994. You're only 21 years behind the times. BENSON: I'll arrange to have an amended statement of claim, your Honour. HIS HONOUR: Are you ready-- ODLING: I think we'll need a medical, your Honour, I think. I don't think we got an assessment from memory. HIS HONOUR: Would you mind giving me Dr Powell's report, please? ODLING: I don't think he gives an assessment. HIS HONOUR: Left shoulder, left hip, right knee, left knee scarring. He gives a WPI. BENSON: No but he's converted-- ODLING: They've been converted, your Honour. HIS HONOUR: The table of maims. "Loss efficient use of the left arm at above the elbow 10%; loss of use of left leg to include above and below the knee 15; permanent loss efficient use of the right leg over the knee 20%". Doesn't say anything about scarring here but you're not claiming scarring. SPEAKER: Yes, there's an amended report. BENSON: I'm told there is an amended report but not received, which deals with the scarring issue. ODLING: It probably needs to be mentioned, your Honour-- HIS HONOUR: Will you be ready in May? BENSON: I would think we would be. HIS HONOUR: That's when I'm next here. BENSON: I would think we would be. The claim is advanced, the plaintiff is ready. ODLING: If scarring is introduced that may require-- HIS HONOUR: You will need it reviewed by a plastic surgeon but there's no great, long waiting list for plastic surgeons. DISCUSSION AS TO SUITABLE DATES HIS HONOUR: The final order is stood over part heard to Monday 17 August 2015 in Newcastle at 10am.
ADJOURNED TO MONDAY 17 AUGUST 2015

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: 27 May 2015

(1994) 10 NSWCCR 515

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (3)