Mark Forwood and Mt Arthur Coal [2018] NSWDC 464

District Court of NSW|2018-03-09

Judgment

HIS HONOUR: The plaintiff, Mark Anthony Forwood, claims weekly payments of compensation from 18 February 2016 to date and continuing for either total incapacity, partial incapacity or partial incapacity to be treated as total pursuant to s 11(2) of the Workers' Compensation Act 1926, as it preserved for those working in or about a mine, and by Workers Compensation Act 1987, Sch 6, Pt 18. The plaintiff also claims lump sum compensation under s 66 of the Workers Compensation Act 1987 for a 20% permanent loss and efficient use of the right arm at or above the elbow against the first defendant, and for 22.5% permanent impairment of his back and for 25% permanent loss of efficient use of his right leg at or above the knee against the second defendant. The plaintiff also claims against each of the defendants a lump sum for pain and suffering pursuant to s 67 in respect of the relevant loss and impairment claimed.
The major dispute between the parties is whether the plaintiff is entitled to weekly payments of compensation from 18 February 2016 because of an allegation pleaded thus: "During the course of his employment with the defendant, the plaintiff has been subject to bullying, harassment and intimidation causing psychological injury."
The matter took up four days of hearing before me last week in Newcastle. The plaintiff called his de facto wife to give evidence on his behalf and four witnesses gave evidence on behalf of the defendant. As well there were numerous documents tendered in each case.

Right Shoulder Injury

There is no dispute that on 7 February 1995 the plaintiff fell and injured his right shoulder. I take that date from the report of Dr David Millons, a surgeon who examined the plaintiff at the request of the defendanta on 31 May 2017. Dr Millons appears to have had available to him the records of Coal Mines Insurance which give accurate dates for injuries and accurate descriptions of what occurred. According to Dr Millons, this was what happened on 7 February 1995: "It was on 7 February 1995, while working at Wambo Colliery, that Mr Forwood was dealing with a paddle and a dragline when it appears he fell some 6 feet, landing heavily on the point of his right shoulder. He felt as if the shoulder almost dislocated and then relocated."
The plaintiff told me that that event occurred during a blackout on the dragline on which he was working. He was taken by ambulance to Singleton Hospital. He was discharged from the hospital on the following day.
The further history of the plaintiff's right shoulder injury is succinctly recorded by Dr Millons thus: "He was not off work for long. He went onto light duties, then onto normal duties. He was able to rest his right elbow on an arm rest driving machines which took the pressure off his shoulder, and he coped with that. I see from his file that he saw his LMO, Dr Bergin, at that time. On 16 May 1996, he was pulling up a ladder on a shovel which jammed. As he reefed at it, he pulled his right shoulder. He does not appear to have lost time from work. On 24 June 1996, while climbing the ladder of a dragline, he was aware of numbness in the shoulder and a feeling as if there was a balloon inside it. Again, he does not appear to have lost much, if any, time from work. I see from his file that he's referred through to see Dr Berton [an orthopaedic surgeon] on 27 June 1996 with a complaint of ongoing pain and cracking in the right shoulder and numbness in the arm. Mr Forwood underwent some investigations. There was a suggestion of some problem with the acromioclavicular joint, but no further treatment was undertaken at that time. Mr Forwood appeared to have just put up with his right shoulder problems from then."
There is no dispute that the plaintiff has as a result of his right shoulder injury lost some of the efficient use of his right arm at or above the elbow. There is of course the usual dispute as to quantum.
The investigations which Dr Berton appears to have carried out were done on 12 July 1996. Dr Millons saw a report of plain X rays of the right shoulder, which stated this: There is slight widening of the acromioclavicular joint space but no significant change with weight bearing views."
Dr Millons also saw an arthrogram of the right shoulder taken on 12 July 1996. It is reported as showing no abnormality nor any evidence of any impingement. On 2 March 2017 further investigations were carried out. An X ray of the right shoulder showed minimal degenerate change in the acromioclavicular joint. An ultrasound of the right shoulder was taken at that time and was said to show some supraspinatus tendinopathy and some impingement.
Dr Millons's opinion as to the condition of the plaintiff's right shoulder was this: "There is evidence of some problems with the rotator cuff at the right shoulder with evidence of some minor impingement. That has been present since he fell off the dragline in 1995. The nature and conditions of his work, pulling himself up and down into plant, may have caused some day to day aggravation of those changes."
What Dr Millons refers to as "day to day aggravation" appears to me to be more likely a temporary exacerbation of symptoms caused by a particular work practice.
The evidence does not persuade me that the plaintiff's right shoulder condition results from anything other than the injury of 7 February 1995.
Dr Millons expressed this view as to the extent of the loss of efficient use of the plaintiff's right arm: "Permanent loss of efficient use of the right arm at or above the elbow would be of the order of 15% with perhaps one third (5%) reflecting some underlying, constitutionally based attritional changes in the rotator cuff and the rest (10%) the aggravating effects of the incidents described by him, in particular the incident in 1995 and the nature and conditions of his work thereafter, he [sic] having to pull himself up and down into various items of plant."
The plaintiff relies upon an assessment made by Professor YAE Ghabrial, an orthopaedic surgeon who examined the plaintiff on 22 February 2017 and produced a report dated 24 March 2017. I infer that the investigations carried out on 2 March 2017 were done at Dr Ghabrial's request. The history obtained by Dr Ghabrial concerning the plaintiff's right shoulder is this: "An injury to his right shoulder some time in 1994. He reported that the shoulder was dislocated and reduced spontaneously. He was off work for a short period of time and he returned to work. He continued with symptoms in his right shoulder since then in the form of pain and some stiffness."
The only inference to be drawn from Dr Ghabrial's opinion is that the condition of the right shoulder results from the injury which actually occurred on 7 February 1995. Dr Ghabrial thought that the plaintiff had a 20% loss of efficient use of his right arm at or above the elbow resulting from his right shoulder injury. The plaintiff's orthopaedic complaints mainly concerned his back and his right knee. The plaintiff's complaints about his right upper limb were modest. It is to be noted that the plaintiff is left hand dominant.
I accept that the plaintiff has a 15% loss of efficient use of his right arm at or above the elbow. I do not however accept Dr Millons's opinion that one third of that loss results from "some underlying, constitutionally based attritional changes." The shoulder is not a weight bearing joint. One can understand that the knee being a weight bearing joint, a hip being a weight bearing joint, and the ankle being a weight bearing joint, might develop some constitutionally based attritional change over a person's lifetime. However, the shoulder is not such a joint. Furthermore, it appears that there was no radiological abnormality back in 1996 and the appearances described by Dr Millons in 2017 show only some minimal degenerative change in the acromioclavicular joint which may well result from the injury of 7 February 1995. I accept therefore that the plaintiff is entitled to an award against the first respondent for 15% loss of efficient use of his right arm at or above the elbow.
I am told that my finding under s 66 entitles the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from that loss. The plaintiff has had symptoms now for some 23 years and, if he have a normal life expectancy, he could expect to live for a further 27 and a half years. However, I have used the subjunctive mood in the last sentence, advisedly. For reasons which will in due course become clear, the plaintiff is doing his best to endanger his own longevity. However, I can accept that the plaintiff would have symptoms in his non dominant arm for a further 20 years at least. The maximum payable for pain and suffering pursuant to s 67 is $66,200. Doing the best I can, I believe that this case of pain and suffering, anxiety and distress approaches one fifth of a most extreme case. I believe the appropriate lump sum to award the plaintiff under s 67 is $13,000. The plaintiff does not allege that the condition of his right arm results in any relevant incapacity for work commencing on 18 February 2016.

Changes of employment

On 28 September 1998 the plaintiff underwent a further pre-employment medical with the Joint Coal Board. That was in order to enter the service of Cooks Construction Pty Ltd for whom the plaintiff worked between 1998 and 2001. Cooks Construction Pty Ltd clearly was working in the mining industry. The plaintiff told me that he drove excavators, bulldozers, trucks and water carts in that employment. He told me of working at three different pits, the Donaldson pit, Wambo Colliery and the Howick Colliery. The plaintiff then joined the Ravensworth East coal mine where he again worked as a plant operator on a fulltime basis in open cut mining from 2001 to 2004. There was a change of owner at the Ravensworth East Colliery which led the plaintiff to obtain two pre-employment examinations, one for Thiess, who had taken over the Ravensworth East Colliery, and one with the second defendant, Mt Arthur Coal Pty Ltd, the operator of the Mt Arthur Coal Mine at Mt Arthur, south of Singleton. That led to the plaintiff's taking up work with the second defendant on 3 May 2004. The plaintiff was in essence a plant operator. He drove bulldozers, excavators and trucks.

Physical injuries at Mt Arthur

The plaintiff, whilst working for the second defendant, reported a number of injuries. I have cross referenced my notes of the plaintiff's oral evidence with the history obtained by Dr Millons and the details of Dr Millons's history of the plaintiff's orthopaedic problems matches the plaintiff's evidence. For convenience, it is easier to divide up the various injuries that the plaintiff had to his back and right knee by considering the two body areas separately.

(i) Back Injuries

Dr Millons's history of the plaintiff's back injuries is this: "Mr Forwood records jarring his back on several occasions while working and driving plant over rough and uneven terrain. I see that on 28 October 2004 he was in a manlift. He pressed the manlift toggle switch into a lower position and the manlift suddenly fell some 300 400 millimetres and he jarred his lower back. He does not think that he went off work then. His back was uncomfortable from that time. He would jar his back occasionally. You note that it was on 8 January 2012 that he suffered a jarring injury to his upper and middle/lower back while walking to a dozer on solid ground. On 9 November 2012, while driving a truck, the truck hit a bump and he had deteriorating lumbar spinal pain. Mr Forwood continued working over the years."
There are some things which need to be added to that history. The manlift was on an excavator. The excavator was so large that besides having perhaps a ladder which could be climbed by the person operating the excavator, a lift was also supplied. The plaintiff's evidence was not of falling up to 400 millimetres, but to falling 1.5 metres. He told me that when the manlift abruptly stopped he was one metre above ground level. The plaintiff told me that in that event he also had a problem with his right knee. In that regard the plaintiff was not challenged. He reported the incident to his Open Cut Examiner (OCE), Mr David Balcombe. He was treated at the first aid post with rest and ice.
The history recorded by Dr Millons about the incident of 8 January 2012 appears to result from a misunderstanding. The plaintiff was involved in a procedure known as "walking the dozer." The bulldozer was being moved from one job to another. The plaintiff was driving it. It travelled over a solid rock platform and he was "rattled" severely. Again, that was reported to his OCE and required a visit to the first aid post.
The incident of 9 December 2012 did not involve the plaintiff driving a truck, but rather a light vehicle that has been referred to as a "Toyota Troop Carrier," which struck a bump and caused a severe increase in the plaintiff's low back pain. The plaintiff said that at the time of driving the light vehicle he was on his way to operate either a bulldozer or a drill.

(ii) Right knee injuries

The history recorded by Dr Millons concerning the plaintiff's right knee is this: "Mr Forwood describes an injury to the right knee when the drill seat on which he was sitting swung around and, as he put his right leg out to stop the rotating movement of the seat, he twisted the knee into what appears to have been something like a valgus position. That incident appears to have occurred on 7 October 2014. There were earlier incidents with the right knee that you have recorded. On 31 December 2005, while climbing up a ladder of a dozer, he slipped and twisted the right knee. On 14 July 2010, whilst walking along the deck of a float, his right leg became lodged in a hole on the floor of the float deck. On 18 July 2014, while climbing down a ladder onto uneven ground, he twisted the right knee. After the incident in October 2014, Mr Forwood had the knee iced. He does not appear to have stopped working. He thinks he saw the Mt Arthur Coal doctor, but he was not referred on to see any specialists. He may have had some physiotherapy. The Physiotherapist thought that he might need an operation on the knee. Mr Forwood was aware from time to time that the right knee seemed to hyperextend."
The "float" the subject of the injury of 14 July 2010 was a huge flat low loader for moving heavy plant. At the time of that incident the plaintiff was trying to load an excavator onto the float. Mud covered a hole in the float and the plaintiff's right leg went into that hole, through the mud, and he was stuck in that position, unable to extract his leg from the hole. The plaintiff told me that not only did his right knee hurt, but he also injured his low back at that time.
Unfortunately, I have no note of the plaintiff's telling me about the event of 7 October 2014, but it is recorded in Dr Millons's report and he was qualified by the defendant and his reports were put before me by the defendant. I have no hesitation in accepting that that event occurred even if the plaintiff did not tell me about it. I should point out that there was no actual doctor at the Mt Arthur mine. The workers at the mine often referred to a physiotherapist, who used rooms at the mine to treat people for compensable and non-compensable conditions and to treat them prophylactically as the "doctor."

Orthopaedic evidence

It is common ground that the plaintiff has some impairment of his back and some loss of efficient use of his right leg at or above the knee as a result of the events which occurred to him at the Mt Arthur mine. However, those problems were not the real reason for the plaintiff's stopping work. It is convenient at this time to canvass the orthopaedic evidence as to the conditions of the plaintiff's back and right knee.
Dr Ghabrial's report of 24 March 2017 tells me this about the plaintiff's back: "Examination of the back on 22 February 2017 showed a normal sitting and standing attitude. There was a normal gait and normal postural curves. The spinal movements were mildly decreased with discomfort. Extension, lateral bending and rotation were decreased with discomfort. There was mild paraspinal lumbar spasm. The straight leg raising was normal. There was no motor, sensory or reflex deficits. There was moderate tenderness at the L4 S1 level of the lumbar midline. The femoral stretch was negative and the sacroiliac tests were normal."
Dr Ghabrial went on to express this view of the radiological investigations: "The X rays and CT scan of the lumbar spine performed on 2 March 2017 showed mild disc bulging at the L4 5 segment and moderate disc bulging at L5 S1 segment without any neural compression. However, at the L5 S1 segment the bulge is producing impression on the anterior thecal sac."
Dr Ghabrial's description of the disc bulging at L5 S1 I find to be somewhat curious. I can understand a bulging disc touching the anterior thecal sac, and I can accept that a bulging disc might compress the anterior thecal sac. However, if it did compress the anterior thecal sac, that would be compression of a neural structure. It may be that what Dr Ghabrial was trying to describe was that the disc bulge at the L5 S1 level touched the thecal sac or reached it. Dr Ghabrial's opinion was that the plaintiff had sustained disc injuries at L4 5 and L5 S1 which he thought was mild at L4 5 and moderate at L5 S1. However, bulging discs are usually a sign of degenerative disc disease in the relevant area of the back, in this case in the low back. Furthermore, bulging discs would not explain pain over the L4 vertebra or the S1 vertebra.
The relevant part of Dr Millons's examination of the plaintiff is this: "Mr Forwood moves slowly but has a normal heel/toe gait. He is stable standing on either lower limb. There is no spasm or tilt of the lumbosacral spine. There is no tenderness. He feels the tenderness 'inside' from the lower thoracic region down to the sacrum. Flexion brings his fingertips to the knees. Extension is to the vertical. Lateral flexion to left and right is one half normal range. Movements are restricted by pain and stiffness. Straight leg raising is 70 degrees on each side. The hamstrings are tight. The sciatic stretch tests are negative."
On examination there was really nothing to be found other than complaints of tenderness but Dr Millons did find stiffness. Dr Ghabrial said he found muscle spasm but none was found by Dr Millons. I cannot be satisfied on the balance of probabilities the plaintiff has a true muscle spasm, which would be indicative of an organic problem in the low back.
Dr Millons expressed this view on causation: "Mr Forwood has some problems with his back over the years. He has jarred his back on occasion and that would be consistent with the nature and conditions of his work driving plant over uneven terrain. There is evidence of some early, constitutionally based attritional changes in the lower two lumbar discs which could be aggravated by the normal activities of daily living and by the nature and conditions of his work. He has had ongoing symptoms since he went off work in February 2016. He took a redundancy package two months later and he has not returned to work... I note that Mr Forwood indicates that the nature and conditions of his employment included whole body jarring, vibrations as a result of operating various plant equipment over full shifts over rough roads and dumps, climbing over and descending stairs, requiring the use of arms and shoulders and regular lifting, bending, constant kneeling, lifting various weights and traversing uneven terrain. That would seem to sum up the nature and conditions of his work well." [the doctor's emphasis]
Dr Ghabrial expressed the view that the plaintiff had a 22.5% impairment of his back with no deduction necessary for any pre-existing condition or disease or any previous problem. Dr Millons diagnosed an impairment of the back of 15% and went on to say this: "Of that figure, one third (5%) might reflect the underlying, constitutionally based attritional change on which are plain normal activities of daily living, and the rest (10%) the aggravating effects of the nature and conditions of his employment over the years and the incidents described by him with symptoms first becoming obvious in October 2004."
I accept the plaintiff has some degenerative disc disease in his lumbar spine. Indeed it could go further if one accepts that the plaintiff complained to Dr Millons of "internal" tenderness between the lower thoracic spine and the sacrum. Rather than frank discal injury I accept that the appearances at the L4 5 and L5 S1 levels result from degenerative disc disease.
The quantum assessed by Dr Ghabrial is unrealistic. I say that because, having dealt with many of these cases over 24 years, one might find an 18% impairment of the back if there is a disc protrusion at some low lumbar level and if it has been necessary to practice laminectomy and fusion, the extent of the impairment could reach 25%. Accordingly, I accept the 15% impairment of the back found by Dr Millons. There is then of course the problem as to whether there should be a deductible proportion because of underlying constitutionally based condition. I have one ipse dixit from Dr Ghabrial and another ipse dixit from Dr Millons. Accordingly I shall apply the statutory 10% deduction so that the plaintiff is entitled to an award for 13.5% permanent impairment of his back.
Dr Ghabrial said this of his examination of the plaintiff's right knee: "Examination of the right knee on 22 February 2017 showed no scars. There was mild swelling, effusion and quadriceps muscle wasting. There was moderate tenderness on the postero-medial aspect of the right knee. The range of motion was 0o - 120o. There were mild crepitations and the ligaments were intact. There was pain the patellofemoral joint. The sensation, flexion power and extension power were normal."
A mild swelling is an effusion, so it was not necessary for the doctor to provide the hendiadys of a swelling and effusion. I understand Dr Ghabrial's use of the words "flexion power and extension power" to mean simply "flexion and extension." Dr Ghabrial tells me that X rays of the right knee performed on 2 March 2017 showed mild osteoarthritis of the medial compartment of the right knee with some evidence of enthesopathy on the insertion of the quadriceps tendon.
The relevant part of Dr Millons's findings on examination are these: "The right knee is some 10o valgus. There is some knobbliness around the medial side of the knee. There is no effusion into the knee joint. There is no tenderness beneath the patella. The patella friction test is negative. There is tenderness medially and posteromedially and also over the femoral and tibial condyles. The right knee exhibits a range of movements from 0o - 110o accompanied by some crepitus. There is slight anterior draw and possibly a slight medial collateral ligament laxity. The right ankle is normal to examination. The left knee exhibits a range of movements of 0o - 120o accompanied by crepitus but no other abnormality is noted."
Dr Millons's findings indicate a greater problem with the plaintiff's right knee than do the findings of Dr Ghabrial. In particular Dr Millons points out that there was a reduced range of movements in the right knee compared to movements in the left knee. What Dr Ghabrial described as enthesopathy of the insertion of the quadriceps tendon was merely described by Dr Millons as being some beaking of the tibial spines. He also thought there was a little lipping on the upper border of the patella.
Dr Millons expressed this opinion: "Mr Forwood had a couple of twisting injuries to the right knee. It appears that in the incident in October 2014, when he put his leg out to stop a drill seat that was rotating and caught his foot on the wall, the knee was driven into a valgus position. He has maintained ongoing problems with the knee since that time. There was radiological evidence early this year of some early constitutionally based degenerative changes in the knee which may have been aggravated by that incident. There may have been a medial ligament strain at that time. The knee is mildly stiff and irritable."
He diagnosed a 15% loss of efficient use of the plaintiff's right leg at or above the knee, of which he thought one third reflected some "underlying, constitutionally based attritional changes in the knee," and the rest of the loss was due to both the injuries of which the plaintiff had told him and of which the doctor had been made aware by the insurer, and also the "nature and conditions of his work over the years." Dr Ghabrial expressed the view that the plaintiff had a 25% loss of efficient use of his right knee and that there was to be no deduction for any pre-existing condition or disease.
Bearing in mind the plaintiff's complaints to the doctors, I accept that he has a 15% loss of efficient use of his right leg at or above the knee because of the condition of his knee at this time. I accept that his knee condition results from both the injuries he described or that are described in the evidence and the type of work the plaintiff did at the second defendant's mine at least prior to his being transferred to drill work. Again, I have an ipse dixit from Dr Ghabrial that there is to be no deduction for any pre-existing condition, and I have another ipse dixit from Dr Millons that one third off the loss should be deducted. In the circumstances I accept that I should apply the statutory deduction of 10% so the plaintiff is entitled to a finding of 13.5% loss of efficient use of his right leg at or above the knee.

Pain and suffering

The next question which arises is whether those two findings should be taken together to assess the plaintiff's entitlement under s 67. I am told by Mr Benson, who appears for the plaintiff, that my finding of the extent of the loss of efficient use of the plaintiff's right leg at or above the knee entitles him to lump sum compensation under s 67 for that loss. As I understand it, the finding of the extent of the permanent impairment of the back would not entitle the plaintiff to a lump sum for that condition, only if the two could be taken together could there be an award for pain and suffering in respect of the impairment of the plaintiff's back.
When I adjourned yesterday evening the issue which I had identified which needed to be determined is whether I should take into account my finding as to the extent of the impairment of the plaintiff's back and my assessment of the loss off efficient use of the applicant's right leg at or above the knee for the purposes of s 67. Essentially I have found that an ingredient of the causation of the impairment of the plaintiff's back and the loss off efficient use of his right legal at or above the knee is the type of work he did as a plant operator in an open cut coal mine. The disease provisions of the Act are clearly applicable. There has been the aggravation, acceleration, exacerbation, deterioration of a disease of gradual process. Theoretically the last relevant date, the last day on which the plaintiff physically performed work, was not 17 February 2016 when he was called to a meeting, but the nightshift on 14 February 2016 which would have ended on the morning of 15 February 2016 at approximately 6.30am. The disease process is the same. To use the terminology so well used by Dr Millons there was attrition, wear and tear. In those circumstances the mechanism is the same. It is the same work causing attrition to both the back and the knee. It may be objected, although it has not been submitted, that some activities might cause attrition to the knee and not attrition to the back, and some activities may cause attrition to the back but not to the knee. For example, merely bending over to pick something up might cause attrition to the back but not to the knee and walking over rough and uneven surfaces may only cause attrition to the knee but does carry a risk of attrition to the back. However, all forms of work are intimately connected. O, one cannot divide up one act of say walking and picking up a stone in the process of walking, or being jarred when jumping off a cobble of coal.
Perhaps analogy is the best way of approaching the matter. Assume that a worker is climbing a ladder and loses his footing. He takes the weight of his body on his hands by which he is holding onto the ladder. He may be a heavy person and the sudden jolting the sudden bearing of his weight by the hands through the shoulders might cause a dislocation of the shoulder. That might cause the worker to let go of the rung of the ladder with one hand and being unable to sustain the whole of his weight on the other hand might cause him to lose his grip and fall. He lands on his feet but the impact is so great that he does damage to either bones in his feet, his ankle joints or his knee joints. He then buckles and falls to the ground and strikes his head leading to a subdural haematoma which might cause some organic brain damage. This would all be categorised as the effect of one event falling from a ladder, a frank injury. However, one can dissect it up and say, well firstly there was the dislocation of the arm and albeit that it might be only measured in hundredths of seconds, subsequently there was the damage to the lower limbs, and, after that again, although it might be only hundredths of seconds later, there was the striking of the head leading to the organic brain damage. In other words, if one closely analysed any event, one might determine that certain injuries happened at different times albeit that the time lag might be small. No one would take such a point. Here I believe the same should be looked at as far as the activities of a worker where the nature of the work is such that it can cause attrition to spinal joints and the joints of limbs and the like. After all, there is little difference between a disc in the back and a meniscus in the knee. Both are in intra articular bodies which shield bone from rubbing on bone. Therefore the process is the same and therefore I believe that I can take into account both the plaintiff's back complaints and his right knee complaints in making an assessment under s 67 as against the current second defendant, Mt Arthur Coal.
Essentially these conditions stem from the event of 24 October 2004. Since that time the plaintiff has had symptoms in his back and his right knee but they have gradually deteriorated. There were some 13 years between that event and the current time, and as I pointed out yesterday, the plaintiff's life expectancy is probably at least 20 years. That is not an inconsiderable time in which to suffer pains in the right knee and the low back, it must be remembered that low back pain can be particularly debilitating. However, the plaintiff's complaints were mainly about his psychiatric condition rather than his low back and his right knee. Doing the best I can, I believe that the appropriate sum toward the plaintiff under s 67 is the sum of $17,000.

Circumstances leading to mental illness

I turn then to the main issue in the case, the plaintiff's psychiatric problems. Many of the events relied upon by both the plaintiff and the defendant have been documented by the defendant or by various officers of the defendant. By defendant I am again referring to Mt Arthur Coal, the second defendant. On 24 January 2013 Mr David Seabrook, one of the plaintiff's supervisors (who was sometimes referred to as his OCE) prepared a "Attendance Review Form." In that form he noted that the plaintiff had four shifts off work on 12, 13, 17 and 18 December 2012 as sick leave for which he did not produce a certificate. When asked to explain his absence the plaintiff told Mr Seabrook that he had "gastro" on 12 and 13 December and that he was actually rostered to have annual leave on 17 and 18 December but for some reason it was processed as sick leave about which the plaintiff was quite content because it meant that he did not lose two days' annual leave entitlement.
Mr Seabrook asked the plaintiff if it were possible that from that time on he provide a medical certificate when sick leave was used. Mr Seabrook also stressed the importance of accurate leave records being maintained and for the need for the plaintiff to communicate any errors on his payroll advice to the relevant officials of the defendant. The plaintiff remonstrated with Mr Seabrook about sick leave. Mr Seabrook recorded this comment then made by the plaintiff: "I will not be providing a medical certificate for any sick leave that's two shifts or less."
Mr Seabrook advised the plaintiff that in doing so he would be actually in breach of his Enterprise Agreement and that there may be more discussions with him by those higher up in the mine hierarchy about his taking of leave.
That actually occurred on 12 February 2013 when the plaintiff was interviewed by his then superintendent, Frank Botha. I should indicate that the hierarchy at the Mt Arthur mine is for coal miners to be overseen by supervisors or OCEs and the next level in the hierarchy of the mine is the superintendent. Mr Botha noted that in the Enterprise Agreement it was clearly stated that sick leave for more than two days per person per annum needed to be justified by the provision of a certificate. When Mr Botha pointed that out to the plaintiff, the plaintiff said that he was under the impression that he only needed a certificate is if he was off work for a period of more than two days and if his absences were for one or two days he need not produce a certificate. In other words the plaintiff believed that if, for example, he took five separate days on sick leave he did not need to produce a certificate for any of them, but the Enterprise Agreement appears to have provided that if he took any more than two days' sick leave in any one year he would have to provide certificates for any sick days thereafter. According to the Attendance Review Form made by Mr Botha on 12 February 2013, the plaintiff committed himself to providing certificates for absent days in the future.
However, that did not occur. Annexed to exhibit 15 are the plaintiff's leave records, between November 2011 and at least up until 17 February 2016. In the calendar year 2013 the plaintiff took three days' sick leave without providing a certificate together with eight days' sick leave for which he did provide a certificate. In other words, he had breached the undertaking that he had made to Mr Botha. In the calendar year 2014 the plaintiff took four days' sick leave without producing a certificate together with one day sick leave with a certificate. In other words, he again breached the Employment Agreement and his undertaking to Mr Botha. In the calendar year 2015 the plaintiff took three days' sick leave without providing a certificate as well as six days' sick leave for which he did provide a certificate. In other words, he again breached the Employment Agreement and his undertaking to Mr Botha. The plaintiff also had off in 2016 20 and 21 January without producing a certificate.
Sometime in 2013 the plaintiff came under a new supervisor/OCE, Mr Clydesdale. One of the interactions between the plaintiff and Mr Clydesdale concerned operating a drill during lightning storms. This issue was introduced at different times in the evidence of the plaintiff and Mr Clydesdale but there is no documentary evidence to indicate when the interaction may or may not have occurred. I shall accordingly introduce it at this time. Sometime towards the end of 2012, but it may have been in early 2013, the plaintiff at his own request moved from being a plant operator to being a drill operator. He discussed this issue with his then supervisor/OCE, Mr Balcombe, and with his supervisor, Mr Hamson. The plaintiff was experiencing continuing symptoms in his back and right knee whilst driving plant. He asked his supervisor and superintendent to be moved off excavators and dozers and his application, which was informal and purely oral, was accommodated and he was moved onto drills. Drills are structures which drill holes into a coal bed to enable explosives to be dropped into the drill holes and eventually the explosives are detonated to break up the coal so that the coal can be loaded by the use of bull dozers and excavators into trucks and taken out of the open cut mine.
When the mast of a drill is fully extended it is 30 metres high. If there be an electrical storm, which was referred to in the evidence as a lightning storm, it was the plaintiff's practice to lower the drill mast and to leave the drill and take shelter in a crib room or other protected area lest the drill be struck by lightning. That had been the plaintiff's practise. He continued to observe that practice, even though Mr Clydesdale had asked him not to do so. The evidence about this I found somewhat amusing. Mr Clydesdale gave evidence of the old system of detecting a lightning storm and of the new system of detecting a lightning storm. A new automated system was introduced in 2016 but when that new automated system was introduced vis à vis the cessation of the plaintiff's work on 14/15 February 2016, the evidence does not disclose. Mr Clydesdale told me that the old system required a supervisor to sit on a wall and watch for approaching lightning storms. There were three levels of alert, red, amber and green, and I assume that that order was given to me in reverse order that if there was green there was no putative problem, that amber was a warning and red meant that a lightning strike might be imminent. Mr Clydesdale told me that if it was estimated that the electrical storm was 16 kilometres away or less, the warning level turned to red. However, Mr Clydesdale told me that there was actually no risk whatever to an operator using a drill in an electrical storm if the drill mast was up and the operator was sitting in the cabin of the drilling machine. He told me that the drill mast operated as a lightning conductor and, because of the operator's position in the cabin of the machine, that cabin operated as a Faraday cell meaning that there was no actual threat to the drill operator as the electricity would pass around him, that is around the cabin in which he was seated.
Despite the advice given by Mr Clydesdale to the plaintiff, the plaintiff continued to act as he had in the past. Mr Clydesdale told me that he in fact never directed the plaintiff or any other drill operator to use a drill when there was a lightning storm around, but the plaintiff's evidence was to the contrary. According to the plaintiff, Mr Clydesdale called the plaintiff a "smart arse." Mr Clydesdale denied saying that, but from other evidence and other actions of the plaintiff, which could be readily described in the vernacular as being a "smart arse," it seems to me likely that the plaintiff may have been called a "smart arse" by Mr Clydesdale in 2013. However, that was not the cause of any incapacity. When the plaintiff told me about being called a "smart arse" he broke down into tears in the witness box. I believe it highly unlikely that he did so out in the Mt Arthur Colliery in 2013.
The next issue concerns an issue that can be shortly described as "signing off." In 2013 a new system was introduced at Mt Arthur requiring workers leaving their shift to sign off on a sheet which contained the names of all the members of the shift who were signing off work. Evidence was given, which I completely accept, of the previous system which was open to abuse and required a close reading of cards before one could ascertain whether a person had actually signed off at the end of this shift or might still be somewhere out in the mine. There was good reason to introduce the new system, and in any event that is not a question for the Court but for the employer who operated the Mt Arthur mine.
Exhibit 1 is a file note prepared by Mr Clydesdale and concerns "informal counselling," which was given to the plaintiff on 24 May 2013 for his activity on 21 May 2013. The substance of exhibit 1 is this: "On Tuesday, 21 May at 6.23am Mark came up to me to sign off the time sheet, I told Mark that he would have to wait until I had finished the start up, and that he was not supposed to be in here before 6.30. Mark left the room and then walked through with his crib bag towards the bath house without signing off. Mark then returned to sign off after having a shower and while signing off with the sheet with his pen and left the room. I then changed the time on the sheet to the time Mark went to the shower which was 6.25am. The second incident happened on 24 May at 6.27pm. Mark again walked in to sign off, I had just started my pre shift talk, so he left the room. When finished Mark came back to sign off[,] showered again. It was then I noticed that Mark had signed his name with 2 crosses and he did this again when signing off. I asked him if this was his signature and what was his problem with the sign off sheets. I also told him that it was not acceptable that he have a shower before he signs off, and that I had adjusted his time on Tuesday morning and that this would continue to happen if he showered before signing off. Mark said that this place was treating them like children and I was now talking in his time, which was still only 6.45pm and left the room."
Under the rubric "Corrective action agreed upon to ensure this does not occur again," is recorded this matter: "I have told Mark that this is unacceptable, to go to the showers before signing off, and he needs to have his correct signature so we can account for him being at work or left work respectively. Mark said as he left the room he would see what he could do."
The latter is obviously a sarcastic comment. The system was for there to be a talk by a supervisor/OCE to the oncoming shift workers and only after that talk had been completed could the workers completing their shift sign the sign off shift paper and then go to their showers and then go home. In any event the workers on a shift were paid until 7.10am or 7.10pm respectively. One can see that at 6.45pm the plaintiff was not "in his own time" because he was being paid by the second defendant until 7.10pm.
Despite having behaved inappropriately on 21 and 24 May 2013, the plaintiff behaved inappropriately again on 26 May 2013. Exhibit 16 is a file note compared by another supervisor, Andrew Lind. Again, Mr Lind provided informal counselling to the plaintiff. The description of the incident made by Mr Lind is this: "On 26 May 2013 at 6.25pm Mark Forwood came into the P7 deployment area and asked to be able to sign off on the B crew time sheet. He was told that he would not be able to sign off and would have to wait until D crew pre shift brief was complete and the B crew sheet was brought out as per latest procedure. At this Mark displayed an unacceptable level of disrespect for this process and for myself who was supervising the sign on of my own crew and setting up for our start up. Mark then indicated that he intended to wait in my start up until the sign off sheet came out. He was told that he would not be permitted to remain and was told to wait in the crib room. After the start up I brought out the sheet for B crew to sign off, Mark again spoke of his contempt for the process and for me as he signed off, making a performance of this with the other P9 B crew people. It is disappointing that Mark appears to believe this process is an attack on himself."
The file note concludes with Mr Lind advising that he had told the plaintiff's own supervisor, presumably Mr Clydesdale, about the plaintiff's behaviour.
The plaintiff behaved inappropriately once again on this issue on 30 May 2013. On this occasion a file note was made by Mr David Seabrook, a supervisor. He may not have been the plaintiff's supervisor but the supervisor of the D crew which generally relieved the B crew. The description contained in exhibit 17 is this: "On Thursday, 30 May 2013 at 6.25pm, the B crew sign on folder was brought into the Production 9 start up room for start of shift at 6.30pm. As some employees began signing onto the sheet, Mark Forwood looked at the employees who had signed on and said, 'Only the arse lickers sign on before 6.30. It's not 6.30, yet we're not getting paid'. This comment was ignored by those at which it was directed... This is clearly in direct breach of BHP's Charter Values Respect. In my absence Mark has had some issues with Relief Supervisors signing on and Supervisors off other crews when signing off and has stated that the company is treating workers like children. Mark has also been spoken to about showering before 6.30, which is in company time. Upon investigation... Mark has been failing to log off his Drill at shift end and failing to enter a delay code. Mark is also stopping his Drill before 6 o'clock each shift and failing to enter any delay/end of shift code. Mark's behaviour and actions are not in line with company expectations in regards to both the Charter Values and with Production expectations."
The "Corrective action" on this occasion was that the plaintiff was given another "talk" by his supervisor which does not appear to be Mr Seabrook, but it might have been Mr Clydesdale again. The plaintiff had communicated to him the expectation that he keep the drill manned and in production until either 6.10am/pm to 6.15am/pm unless he communicated a valid reason to his supervisor for that not being possible. He was also admonished to enter the correct shift change delays into the "modular system," which I understand to be some form of computer record. He was also directed that after arriving back at the deployment area he was to wait until after the pre start briefing to the oncoming crew before signing off. He was also advised to behave in a respectful and courteous manner, not only with his supervisors but also with his workmates. He was also told that only after signing off was he permitted to proceed to the bath house for showering, and that he could not go to the bath house to shower until after he had signed off. Accordingly one can see that the plaintiff was supposed to keep working until 6.10 or 6.15, he then could go to the deployment area and sign off from 6.30 onwards and then he could go and have a shower and he was still being paid until 7.10.
The plaintiff's interaction with those in authority concerning the new signing off procedure led the plaintiff to speak to his general practitioner, Dr Cecil Ford, at the Raworth Cottage Medical Practice at Singleton. The plaintiff saw Dr Ford on 5 June 2013 at 2.02pm. Notes recorded by Dr Ford are these: "'Feeling a bit depressed again'... Reason? ... Says work... 'Giving me a hard time, boss carrying on with him a bit... always changing rules... getting upset... dragged him in and gave him some lectures' ... Relationship [with de facto wife] OK. Anxious, easy teariness, feeling flat, amotivational. Says boss lied to him and then laid the blame on him (whatever it was). Wants to resume antidepressants and two weeks off."
Dr Ford gave the plaintiff some counselling. He also obtained a complaint that the plaintiff had had a "cold" for the last three days with chills and aches and pains. The doctor prescribed Avanza 30 milligrams, one to be taken each night. Avanza is a brand name for the generic drug mirtazapine. That was not the first occasion on which Dr Ford had prescribed that drug for the plaintiff, but I will return to that issue later. The doctor also issued a certificate which was not on the WorkCover prescribed form, but a normal certificate of unfitness for work indicating unfitness for normal work between 7 and 21 June 2013. That represents the eight days' sick leave taken by the plaintiff in 2013 when he produced a certificate. It appears that the interaction of the plaintiff's supervisors and the plaintiff concerning the new sign off procedure was taxing for both. The plaintiff does not claim compensation in respect of that period of alleged incapacity for work.
On 11 July 2013 the plaintiff was given counselling by his superintendent, Ms Hannah Farr, who, like Mr Clydesdale, gave evidence last week in Newcastle. Ms Farr made the file note which is exhibit 3. It in essence provides a synopsis of the matters I have already discussed. It also raises the question of the plaintiff's recent block of sick leave when he lost eight shifts between 7 and 21 June 2013. According to Ms Farr's file note, the plaintiff agreed that he would do the following: "1. Behave in a professional manner toward supervisors at all times, and in particular at the sign on. 2. Sign off at 6.40am/pm with a consistent signature that is predominantly inside the signature box, will not damage or deface the time sheet, and will not attempt to sign upside down. 3. Will not have a shower prior to signing off. 4. Will enter a correct shift change delay into Modular prior to leaving a drill at end of shift. 5. Will contact the superintendent to explain any unplanned absences in addition to the normal notification to despatch (to be handed over to his supervisor David Seabrook on return from leave). This requirement will remain effective for three months until 27 September 2013."
The document ends with a note that the plaintiff agreed that any deviation in his behaviour away from what was outlined at the meeting with him would result in escalation of the informal counselling to a level 1 "verbal warning," which on the evidence before me really means an oral warning, a warning not being reduced to writing.
It would appear that by that stage that that file note was made Mr Seabrook had replaced Mr Clydesdale as the plaintiff's normal supervisor. On 29 September 2013 there was some conversation between the plaintiff and Mr Seabrook about his sick leave. Exhibit 18 refers to this interaction. The discussion was about what was thought to be an unacceptable amount of sick leave in the preceding 12 months. In that 12 month period the plaintiff had taken seven sick days without a certificate and eight sick days with a certificate. However, the file note is in fact helpful for the plaintiff in that it records this: "Mark agreed to continue working towards improving his attendance. Mark understands the importance of presenting for work and the effects it has on the team of not doing so. Mark is also aware of the requirement to obtain Certification in the event of further sick leave. Since Mark had a similar discussion in January this year, he has had two Un-Certified sick days and eight days Certified. Mark has had some personal issues he is working through and has discussed those issues with his Supervisor and Superintendent. Mark's overall attitude towards work has greatly improved, as has his attendance in the past two to three months and Seabrook thanked him for his effort and asked for it to continue."
Unfortunately the evidence does not disclose to me what the plaintiff's personal issues were in 2013. I am well aware of the plaintiff experiencing matrimonial difficulties in 2010, but by 4 August 2010 the plaintiff had found his new partner, Nicole, and described himself to Dr Ford as being "happy."
The plaintiff did return to see Dr Ford on 11 November 2013. Dr Ford took this history: "Looks more relaxed and happier: did not return for follow up after last relapse of reactive depression: work related: his boss has since been sacked... had a holiday with partner including spending time at her property at Taree. Seeks renewal of Avanza now for five months: says occasional teariness without reasons: on enquiry... withhold further anti depressant."
The important thing to note is that the plaintiff was then happier, that whoever he believed had it in for him at the Mt Arthur mine was no longer there, and as far as Dr Ford was concerned, he no longer needed to stay on Avanza.
Nevertheless the signing off problem continued into 2014. On 15 March 2014 an OCE, Michael Waugh, filled out a form headed "Record of Interview." The substance of the document is this: "At approximately 6.40[am] on 15 March 14, I observed Mark Forwood yelling at Gary Peterson (Step-Up) to hurry up and bring the sign off sheets out as he (Gary) was an ex union rep and then took the sign off sheets off Gary so there would be no further issues. While we had the sheets out at 6.45pm I heard Mark swearing saying, 'Fucking idiots'[,] 'no wonder nobody wants to work here'. Unfortunately due to the crowd of people signing off I could not catch Mark to speak to him."
That led to the plaintiff's being given a "verbal warning," the first stage of the employer's disciplinary system. The verbal warning was given to him by a Superintendent, Jeff Hanlon, and the supervisor present was Mr Seabrook. Mr Hanlon recorded that the plaintiff disagreed with the comments that had been made against him, presumably those recently made against him by Mr Waugh. The file note made by Mr Hanlon goes on to record this: "He believed that the discussion from Hannah Farr in place for three months only. He believed that he had not used abusive language towards the supervisor."
Both the plaintiff's observations were correct. However, it was pointed out by Mr Hanlon that there should not be any abusive behaviour at any time in the workplace and certainly the plaintiff had acted abusively if Mr Waugh's comments were to be believed. The tender of Mr Waugh's file not, which is exhibit 19, was not the subject of any objection.
The next relevant problem identified could be described as "driving through witches hats." Exhibit 4 refers to this event. Exhibit 4 is a file note made by Ms Hannah Farr following upon a discussion on 8 January 2015. The discussion involved only Ms Farr and the plaintiff. The substance of that recorded by Ms Farr is this: "On 21 December 2014, Mark Forwood was observed by supervisor Dan Riley (in Production 8 role at the time) to be driving through two sets of witches hats placed on the Mega Ramp in Roxburgh Pit without having called up for authorisation. Upon investigation with Mark after the event, Mark stated that he was stressed and had been tired during the night shift and had to input two fatigue delays throughout the night. Mark stated he did not notice the hats on the ramp until such time that he was at the second set of hats and he noticed that he'd pulled up at the top of the Mega Ramp intersection alongside a hat, whilst giving way to a truck. The supervisor completed an investigation pack including photos of the witches hats in position and determined that the hats were all standing, visible and spaced approximately 5 metres apart. The supervisor stated that Mark had also displayed the lack of accountability for the event initially, and it took some time in the interview to reach the point where Mark admitted he understood that he had done the wrong thing by driving through the hats. On 8 January 2015 I interviewed Mark Forwood regarding his breach of procedure, and his attitude displayed with supervisors during the investigation process. I reiterated to Mark that Mark had not followed procedure for calling up at witches hats and asked Mark what had occurred on the day of the event. Mark stated that he did not see the witches hats until at the second step. He also stated that he was tired and stressed at the end of night shift which had likely impacted on his performance. Mark then stated that if there had been a red triangle OCE sign in place, he would have noticed the hats and stopped. When I questioned Mark on this, Mark stated that when there is a red triangle there he knows that it's actually important and that he needs to call up, and that normal witches hats are used everywhere for all sorts of reasons. I informed Mark that this to me demonstrated a somewhat complacent attitude towards travelling past witches hats and confirmed parts of the supervisor's concern. I explained to Mark that witches hats with or without a triangular OCE sign indicated a need to seek authorisation from a supervisor prior to travelling through. The triangular signs further help the process by indicating a specific OCE to call up, but were not an indicator of more serious concern. I then explained to Mark that I have not heard concerns raised from supervisors regarding Mark's performance as a driller, specifically, and that all the surrounding infractions and behavioural issues were affecting his reputation and detracting from his overall performance. I summarised with Mark by stating that this most recent incident as well as his combined performance with behavioural related issues did not meet my performance expectations and that I believe he is capable of better performance. Mark stated that he was a big believer in safety and always did his best to follow rules and procedures. At this point I pointed out to him that his sleeves were rolled up which caused me to question his credibility, and this was an example of the broader issue of complacency and behavioural issues. Mark did not have a reply for this. I stated to Mark that this would constitute a Level 1 Verbal Warning."
The need to keep the sleeves of a long sleeved shirt rolled down is to prevent skin cancer. Whilst the plaintiff could not provide any explanation to Ms Farr on 8 January 2015 as to why he's sleeves were rolled up, he told me that his sleeves were rolled up because he was inside a building and there was no risk of sun cancer. If he could tell me that, then why could he not have told Ms Farr that? The plaintiff's excuse to me appears to be ex post facto rationalisation. The plaintiff's protestation to Ms Farr that he would have noticed the witches hats if there had been a red triangle OCE signing placed is also unacceptable. If he did not notice witches hats, he was not keeping a proper lookout. If he was not keeping a proper look out, he would not have noticed a red triangle either.
The plaintiff's attempts to justify his driving through the red witches hats safety procedure at the mine is unacceptable. Workers are required to stop at a line of witches hats and ask permission to proceed through them. The plaintiff stopped on this occasion to give way to a truck crossing his path, but he appears to have ignored the witches hats. An attempt was made to try to explain the plaintiff's conduct by the fact that a drilling area is marked off by witches hats and the plaintiff could enter that line of witches hats with impunity because it was his job to work in the drilling area. However, the evidence persuades me that in addition to witches hats there is another sign indicating a drilling area and clearly the plaintiff was entitled to drive through witches hats which might surround a drilling area and were sign posted as such. The witches hats on the Mega Ramp were not witches hats that governed a drilling area, as the evidence before me makes clear.
The next episode concerns the plaintiff's driving a light vehicle in the mine without wearing a seatbelt. There were a number of other infractions alleged to have occurred at this time. The first piece of documentary evidence is exhibit 5. It is a report by Mr Kevin Watts, the maintenance supervisor at Mt Arthur to Hannah Farr, with copies being sent to other officials at the mine. It indicates that Mr Watts checked the computerised records of a light vehicle, which appears to be numbered LTV 4165. It appears that it had been driven without a seatbelt between 5.59am and at least 6.04am on 5 March 2015. The exhibit is somewhat confusing as it shows in the heading that the non-compliance was on 4 March 2015 but the information appears to say that it was on 5 March 2015. That led to a meeting between Hannah Farr, the plaintiff and two others in the presence of Mr Dave Ellam, a support person, who I infer was an official of the CFMEU, the plaintiff's trade union.
The notes of the meeting, exhibit 6, were made by Ms Kellie Bromfield, who acted as an amanuensis at the meeting. Before going to those minutes, I should explain that all vehicles including plant are required by law to be inspected every 24 hours. This is known as a s 103 inspection and is generally referred to as a "103." The first issue identified is that the plaintiff dropped off a vehicle which had no 103 inspection in the last 24 hours. The plaintiff had driven the vehicle that morning, having picked it up at what is referred to as "crib share," which I assume means that the vehicle was there for the use of anybody and may have been kept near a crib room. The plaintiff said that the vehicle did not have any air conditioning and that the key was "rooted," by which I infer he means that it didn't work properly. The plaintiff said that he fixed that and he also fixed a fan belt. The plaintiff was told that he was expected to carry out a 103 inspection by looking at the log book to ascertain when it last had a 103 inspection and if more than 24 hours had elapsed he was to carry out one himself. The plaintiff replied that he does that later in the shift so that he understands what might be wrong with the vehicle if anything. It was suggested that that was a fair objection to make, however the notes continue thus: "Really not good enough, checking off for a car you would want to check off before you drive it off, as no one has completed a 103 in the last 24 hours, do the break and steering work, walk around, later driving their car found other defects."
It was then drawn to the plaintiff's attention that the computerised records of the vehicle indicated that the plaintiff was not wearing a seatbelt. The plaintiff protested that he did wear his seatbelt and Ms Farr replied that how would she know that. The plaintiff then accused her of harassing him. Ms Farr said that they had checked the system and was sure about its recording the plaintiff's not wearing his seatbelt. The system had been checked because it also recorded the plaintiff had not used his driver ID tag so that the system did not record who actually drove it, but it was ascertained by officials of Mt Arthur mine that that system was not functioning correctly and the plaintiff was not being reprimanded for that but rather he was being reprimanded for not wearing his seatbelt and the system had been checked and found to be working correctly. The plaintiff protested that he always wore a seatbelt and therefore he would have been wearing his seatbelt on this occasion. The notes record this observation, clearly made by Ms Farr: "Your credibility around complying to safety rules... is hard to take your word on this stuff when your compliance to rule has not always been sound."
There was an agreement to make further inquiries to ensure that the system that recorded that the car was being driven without the driver wearing a seatbelt was functioning correctly.
However, the plaintiff maintained then that he was being "targeted" by management. The record goes on to record this: "Your past behaviour has put you on the radar, no one else has put you there, that it is just you, we have been extremely fair to you and [been] accommodating to you, we are asking you to do what you know you need to do, when you are there on the drill you seem to be getting right, it's black and white stuff that is easy to get right and that you get this stuff right consistently."
In other words, what was being stated is that the plaintiff's actual work on the drill was being consistently good, but he was in trouble for other safety or disciplinary breaches.
Exhibit 21 is a series of emails following upon this meeting. The first is one sent by Hannah Farr to Mr Daniel Redman. Mr Redman is subsequently identified in evidence as being at a managerial level above the superintendent, but whether he was at this time is not clear. Ms Farr's email of 2.07pm says this: "After speaking to Mark Forwood this morning regarding the evidence we have, that suggests he'd not been wearing his seatbelt during a journey last week from in pit to deployment, I am informed by Steve Clydesdale that Mark has gone home, stating that he 'couldn't handle it'. I have advised Steve that the balance of his shift be unpaid leave, as he is not sick, and our annual leave quota today is full, requiring my approval above the numbers, of which I am not willing to do."
There is one further paragraph in the email but I need not quote it. At 2.25pm on the same day Mr Redman replied to Ms Farr thus: "My understanding is the next step is to look at some data for the day to see the seatbelt triggered abnormally/or not previously and hence form another piece of data to confirm it was working. With this data and the fact that the LV mechanics checked the system was fully operational the day the event occurred will be enough for me to progress the case."
At 2.32pm Ms Farr sent this email to Mr Redman: "It's in progress, have already followed up some more data from Kevin post the meeting. Just waiting on some further reports to compare on different days the different operators to see other reports aren't all showing the seatbelt issue."
In other words, Ms Farr was seeking information about the proper working of the system which recorded whether the seatbelt was being worn or not. Ultimately it must have been determined that it was.
However, before I go to that I should indicate that on the same day of the meeting the plaintiff attended upon Dr Ford at 3.49pm. Dr Ford's history is this: "Need time off work because of stress at work: 'picking on me for past few months, they are bullies'... allegation of breach of safety issues which he claimed are minor... had to leave work at 1pm today... wants a week off and wants stress/anxiety to be stated on certificate and wants me to so state on certificate... declined latter, it is not my place to assert such a claim."
The doctor issued an ordinary medical certificate certifying inability to work between 9 and 16 March 2015 due to "stress and anxiety." It is noteworthy however that the plaintiff was not prescribed any medication such as Avanza on 9 March 2015.
On 9 April the plaintiff was given a written warning by Mr Clydesdale who was then the acting superintendent of Production at Mt Arthur Coal. The warning is exhibit 9. The warning is in these terms: "We have investigated an incident that occurred on 5 March 2015, in which you dropped off light vehicle 4165 to the Light Vehicle Maintenance workshop. Specifically we discussed: your failure to complete the necessary 103 check; our failure to correctly log onto the vehicle; our failure to wear a seatbelt for the trip duration in breach of cl 4.3.11 of the Surface Transport Management. The company finds your actions on 5 March 2015 unacceptable. They have failed to comply with safety critical mine site procedures. As a result of your conduct you are being issued with a Written Warning. This will be placed on your personnel record and will be valid for one year. Any further breaches of any Mt Arthur Coal and BHP Billiton policy or procedure may result in further disciplinary action, up to and including, the termination of your employment."
The final paragraph of the letter directs the plaintiff's attention to the employee assistant program if he wished to utilise that. The letter can be criticised for pointing out that what had been discussed with the plaintiff was his failure to correctly log onto the vehicle when it was known that that recording system was not working properly. However, it is the failure to wear the seatbelt and the failure to complete the 103 inspection which are breaches of the safety policies and which led to the issue of this written warning. I am persuaded on the balance of probabilities and that the written warning was appropriate and reasonable.
The next issue which arose was the introduction of a process known as "hot seating." Hot seating is a procedure where there is a minimal break in the operation of a piece of plant or machinery where the seat is still warm when the worker coming on shift replaces the worker going off shift. On the evidence before me hot seating had previously been introduced at the Mt Arthur mine successfully for operators of plant and machinery other than drilling rigs. There had been an earlier attempt to introduce it for drilling rigs. That earlier attempt had been unsuccessful. An attempt was made to reintroduce hot seating in early 2016. The first relevant document is exhibit 9. It is an email sent by Mr Terrance O'Brien, known as Terry O'Brien, who was the superintendent of drilling and blasting at the Mt Arthur mine. He sent an email out at 5.05pm on 4 February 2016 to the leaders of the drilling teams and blast teams. The email is this: "Due to the low inventory and poor performance regarding utilisation/availability of drills, they are the top priority at the moment to ensure that we are in front of the blast team with Drilled inventory. Expectations: Man all drills (if required utilise drillers outside your work group); Crib all drills (if required utilise drillers outside your work group); Focus on drill prep. Dozer and grader must be manned every shift (If either is down, replace with pit gear). Drill prep schedule attached. Please be diligent with our standards. Focus on hot seating drills. (Potentially if we have more than one drill working in an area, one driller will come in and the rest will hot seat their drills). Plenty of opportunity in this week's plan. Crib delays are an area we can improve on also, please monitor and add on your shift report comments for any crib delays over 45 minutes. Can you please send me an email outlining how you will implement hot seat changes on your crew and what opportunities over the next month you will have based on the schedule."
Mr O'Brien made it clear that that system was to start immediately, that is it was to start with a shift commencing at 6.30pm on 4 February 2016.
The plaintiff started a night shift on 4 February. He also did a night shift on 5 February, day shifts on 8 and 9 February and night shifts on 12, 13 and 14 February. On 9 February 2016 the plaintiff was reported by his supervisor, Mark Bailey, to have failed to implement a hot seating arrangement. On 12 February 2016 the plaintiff had a discussion with Mr Bailey about that and the record of that discussion is exhibit 7. The details of the event provided in the file note are these: "Mark has failed to follow a reasonable request from supervisor to Hot seat his drill at the end of shift, which significantly impacted Utilisation on his drill at a time when drilled inventory is at a critical level. The comment of the plaintiff recorded by Mr Bailey to this discussion was this: 'Not good for morale'."
[Although the final E on the last word is missing from the document.] The agreed future actions were these: "Mark has agreed to follow all reasonable requests, hot seat his drill at shift change when possible and proactively look for opportunities to increase Utilisation of the drills. Mark understands the importance of increasing drilled inventory."
Exhibit 10 contains two emails. An email was sent by Mr O'Brien to Mr Bailey on 10 February at 1.54pm. The subject of the email is this: "End of shift hot seat." The substance of the email is this: "Hot seat last night didn't go very well. Looking at the TAS report Barry Saunders swiped off at 1910 and the rest swiped off between 1840 and 1842. Did you set clear expectations regarding shift change, what drills were organised to hot seat? I would like file notes for each of the operators you organised to hot seat that failed to follow direction. Can you tell me what time M... L... swiped off and how long has his swipe card been lost."
Mr Bailey replied to Mr O'Brien at 4.55am on 13 February: "File notes will be completed for Mark Forwood, [names of two other workers]. Others for that shift were relocation, breakdown and co ordinator. Further discussion with crew regarding expectations with log off machine time (not before 20 to the hour) and swipe off time (between one quarter and ten to the hour). This is the time they have been told previously. Any change to that, could give me some direction please."
The email continues with a comment on the position of "Matthew" and how he managed to find his card but that it was not registered and attempts were made to provide him with a new card. That is of no relevance in the current proceedings.
At 11.15pm on 13 February 2016 Mr O'Brien sent an email to Mr Bailey concerning drill 111. That is the drill that was being operated by the plaintiff. The subject of the email is this: "... 111 drill was down for most of Friday night. Issues were cracked track grouser, an old injury apparently. This kept the drill down until 8.40pm. He then drilled until 10.40pm, achieving 64 metres, (holes on average 29 metres on WW3 pattern). This time the delay was for low rotation pressure and he had trouble unlocking rods. He remained down from the rest of shift and had fitters chasing the problem. The issue I have is that the drill operated okay on day shift with minimal issues. I don't have any proof but I think he is protesting regarding the issue of file notes. Workshop guys are of the same opinion. The operator is again having trouble tonight with the same issue. I am at a bit of a loss without evidence and I am looking for some direction as to where we can go with Mark Forwood. Basically, I am over his game playing tactics."
The "operator" again having trouble on that night was indeed the plaintiff. The tenor of the email is a belief by Mr Bailey that in protest at having been issued with a file note meant as a warning about not participating adequately in hot seating, the plaintiff was deliberately slowing down the operation of his drill. Indeed as time wore on, and there was not much further time in question, the allegation became that the plaintiff may have been deliberately damaging his drill as part of this protest having been given a warning about failure to engage in the hot seating process on 9 February 2016.
The plaintiff's shift on 13 February 2016 appears to have been followed by another shift commencing on 14 February 2016. However, the next relevant event was a meeting held on Wednesday, 17 February 2016 at I infer the commencement of the plaintiff's day shift on that day. The meeting was held in Mr O'Brien's office. It was attended not only by the plaintiff and Mr O'Brien but by his supervisor Mark Bailey and a representative of the CFMEU merely identified as Clint. Mr Bailey made some notes at that meeting. The notes continued to record what happened after the meeting. The notes are exhibit 8. It is worth reciting them in full. They are not a complete record of the meeting and do not contain some vital information but they indicate what was being discussed and how the meeting may have progressed: "Mark has been issued with a file note on 9 February 16 for not following instruction to conduct a hot seat changeover in pit at shift change. I told Mark this at start of interview and also that maintenance had requested that he is not to operate drills in the future as they are called to his drill on excessive amount of time. I told Mark that maintenance are of the opinion that he is intentionally doing damage to drill. Mark denied this. I explained the fitters had reported the pressures were wound up to maximum when he had rods locked together. This occurred after he was issued the file note. I repeated that I told him I would back him and stand the drill down for safety defects but would not back him if he stuffed me around. Clint CFMEU rep was told by Terry to not speak other than to support his client. Terry asked Mark if he had been given clear instructions to conduct a hot seat change over. Mark said he thought so but was unsure of the time he could pull drill up. He could not recall a reason that he logged off drill at 6.17 that day. Mark reiterated that he was a good worker and did not damage equipment intentionally. After several questions from Terry, Mark agreed that he knew he was instructed to conduct a hot seat changeover. Mark also denied that he had spoken to other crews and told them to log on to machines late to show that hot seats did not work. I agreed that I had told my crew that we need to conduct hot seats for a while and then compare data to judge their effectiveness. Terry showed Mark a written warning regarding his refusal to wear a seatbelt. Mark denied that this occurred. Terry went on to discuss Mark's other 13 file notes that have been issued in two and a half years. Terry asked how Mark had stayed employed in that time. Mark said he had suffered hardship such as a marriage breakdown in the last couple of years. Terry said he had also had a rough few years but did not have 13 file notes. Terry went on to question whether Mark should retain the privilege to operate drills as we have elevated drills to top priority to catch up. Mark said he had a back injury and a knee injury and could not operate other equipment. Terry said he would look into this to see if there was any written evidence to allow Mark to operate drills only. Terry said he would try to elevate Mark's discipline to level 3 and in the interim, Mark needs to refresh his truck skill. We had a break from meeting to discuss our views and to talk to Michelle from Injury Management. When we returned Terry asked Mark if he had anything to say that will convince him to leave Mark on the drills. Mark [said] it did not matter as things would not change. Terry organised training department to set Mark up with a computer to begin truck refresher."
In cross examination Mr Bailey gave some evidence of crucial pieces of discussion which were omitted from his file note, albeit not deliberately. When the plaintiff protested that he was a good worker, he also protested that he had the support and confidence of his work mates. Mr O'Brien then said to the plaintiff that the plaintiff's supervisors had nothing good to say about him, that the plaintiff's fellow workers had nothing good to say about him and the majority of his supervisors/work mates did not want to work with him. The plaintiff told me words to the same effect. When telling me about meeting on 17 February 2016 the plaintiff also told me that earlier, in 2015, HE WAS advised by Jeff Hanlon that he was considered to be a hindrance to the company and that the company did not like hindrances being around. The plaintiff also told me that Mr Hanlon said to him that, if the plaintiff repeated those comments that Mr Hanlon had made, Mr Hanlon would deny them. Mr Hanlon was not called by the defendant. Equally, I haVE already outlined in these reasons exhibit 20, the incident when on 19 March 2014 Mr Hanlon delivered to the plaintiff a stage 1 verbal warning. It is quite possible that what the plaintiff said Mr Hanlon said did occur. However, I have some difficulties with some of the plaintiff's evidence. In any event I need not decide that issue because it appears to me that the observations made by Mr O'Brien, which were the subject of concessions in cross examination by Mr Bailey, were made. Furthermore, Mr O'Brien admitted using the words which I have taken from the evidence of Mr Bailey.
It is clear from the notes made by Mr Bailey, that the allegation was made the plaintiff was deliberately damaging his drill. It is also clear that the maintenance department wanted the plaintiff taken out of drilling and it appears that Mr O'Brien wanted the same to occur. It is a "core skill" for anybody working at Mt Arthur mine to be able to drive at least a truck in the pit. It is clear that the tenor of the discussion at the meeting was that the plaintiff's job was under threat because Mr O'Brien wished to move him from being a drill operator and return him to working in the pit as at least a truck driver, which would re expose him to jarring and jolting which was inimicable to the plaintiff's back and right knee. The fact that the plaintiff was taken off bull dozers, excavators and trucks and placed on drills because of his bad back and bad knee is really not disputed. There is no written evidence of it but those who granted indulgence to the plaintiff are not called to deny it. Ms Farr was satisfied that it had in fact been an arrangement made in good faith and she was not prepared to interfere with it. It is also clear that the immediate outcome of the meeting was for the plaintiff not to return to his drill but to undergo a refresher course using a computer, so as to drive a truck.
I turn now to consider more closely certain issues that arose at the meeting on 17 February 2016. The first thing to note is that an allegation of deliberately damaging equipment used in the mine is an allegation of a very serious criminal offence. Under the Crimes Act 1900 s 195: "(1) A person who intentionally or recklessly destroys or damages property belonging to another...is liable: (a) to imprisonment for 5 years;"
Under s 201 of the same statute: "(1) A person who intentionally or recklessly: ... (c) destroys, damages or renders useless any equipment, structure, building, road or bridge belonging to, or associated with, a mine, or (d) hinders the working of equipment belonging to, or associated with, a mine, is liable to imprisonment for 7 years."
The presumption of law is against the commission of a crime. Although these are civil proceedings the Court must bear in mind the dicta of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334. The Court cannot and does not readily infer in civil proceedings that a person such as the plaintiff has committed a serious criminal offence. Certainly the defendant has failed to establish, even on the balance of probabilities, that the plaintiff deliberately damaged the defendant's drill number 111 that he was operating in February 2016.
The plaintiff may have been engaging in a "go slow" exercise. For example, there is abundant evidence that the grouser, a steel plate on a caterpillar belt, such as one finds on a tank and is often found in large items of plant, was an old injury which did not impede the safe use of the drilling rig number 111. That the maintenance staff may have been upset on being regularly called to the plaintiff's drill might merely mean that that drill was the "lemon" of the drilling rigs, but it also might mean that the plaintiff was particularly cautious in the use of the drill if he believed that there might be some problem with it which could affect safety. The complaint about the grouser to me indicates the plaintiff was perhaps taking out his unhappiness about the file note with which he was served on 12 February concerning 9 February hot seating, but the balance of the problem with the drill on the evening in question is in my view not substantiated.
Before going into what I consider to be the nub of the matter, the plaintiff has an explanation for the failure of hot seating on 9 February 2017. His drill was near two other drills. The workmen on that drill came up to his drill both in a light vehicle to collect him to take him back to the deployment area and the plaintiff says that in those circumstances he was confused as to the operation of the hot seating arrangement. However, that was not an excuse put forward by him at the meeting according to the documentary evidence that I have. The plaintiff did, when interviewed by Mr O'Brien, say that he was confused about the existence of the hot seating arrangement but did not proffer the excuse that two other drillers from nearby drills had collected him a light vehicle. On the other hand, it is consistent with the delivery of three file notes to persons including the plaintiff that two other persons were involved in the failure of this hot seating arrangement. However, it is clear from the concessions made by the plaintiff at the meeting that he was aware that he was supposed to hot seat. All in all, my assessment of the evidence is that it is not one way or the other but neutral.
To understand what I believe to be the critical matter arising at the meeting, it is necessary to cite some further facts subsequent to the meeting. Exhibit 8, Mr Bailey's notes, continue thus: "Mark rang me at 1.53pm to tell me he was leaving site to see a doctor. I rang Terry to tell him and he asked me to ring Mark back to make sure he was okay to drive as he was very upset when he rang me. I called Mark he said he was on his way to town and was not coming back to work so we could drive him in. Mark told me he was disappointed with me for accusing him of intentionally damaging drills. I told him I was going off information I received."
The plaintiff did not get to see Dr Ford until the following day. However, he made some notes.
The first notes he recorded at 4pm on 17 February. The note is exhibit C. The note says this: "How do I feel? I feel like nothing. I'm crying. I have been accused of stuff by an OCE, Mark Bailey, that I never did. He went on hearsay. I had respect for Mark. I am gutted. I feel worthless. Have you ever thought about suicide? To run into an oncoming car. I cry when I thought that two people could make me feel that low of myself. To have no thought of the people in the oncoming car. I did this on my way home from work today after being bullied and belittled by Terry O'Brien and Mark Bailey. I feel worthless. I have worked all my life with pride, taking pride in my work. I have no confidence in myself now. Are they right? Maybe I am, as Terry O'Brien put it: 'No good to us at Mt Arthur'."
The plaintiff continued his note at 3am on the following morning, the morning of Thursday, 18 February 2016. The note continues thus: "Why do I feel scared about going to the doctor? I wish I could stop crying. Terry told me my supervisors past and present think very little of me and he said my peers think very little of me. Maybe I am worthless."
The note ends with the plaintiff printing his name on the document. It may be that the plaintiff was preparing that document as a suicide note because it clearly in the first part of the entry contemplated suicide by deliberately running into an oncoming vehicle.
The plaintiff saw Dr Ford at 9.59am on 18 February. The history recorded by Dr Ford is this: "Crying and agitated because of event of yesterday at work. Seems his superintendent, described as a 'thug', called him in yesterday in the presence of a union delegate and Open Cut Examiner told patient that: 'He was no good to him as a driller, not much good at Mt Arthur mines and that he was pretty worthless; was also accused by Open Cut Examiner of deliberately damage a machine... that he was told that he is now on a Level 2 violation... on reaching Level 3: sackable.' Wrote a two page note at 3am this morning; I read it, but somehow was not scanned into MD... will enquire as this is important, giving details of events of yesterday and names included of alleged abusers and how he was feeling after the accusation re self harm of throwing himself in front of a vehicle. Wants this as WorkCover on basis of harassment/bullying at work causing him stress and relapse of his depression. On review of MD: noticed similar episode in 2013 and was resumed on Avanza. Informed that work/insurance may decline liability and that his claim may well be challenged. After discussion/explanation agreed to pay privately for consult and to keep receipts until insurance company accepts liability."
The rest of the doctor's notes goes on to record a plan for counselling and for medical review. The plaintiff was then prescribed on Avanza 30 milligram, one nocte.
On the same day Dr Ford issued a certificate on the WorkCover form stating that the plaintiff was totally unfit for any work on 18 February 2016 and until 14 April 2016 and the diagnosis contained in the initial certificate is, "harassment, intimidation and stress," which is, of course, not a formal diagnosis. However, later in the certificate the doctor said that there was a past history of depression which was "work related." He also recorded the prescription of Avanza which is an anti-depressant. One might infer from the doctor's certificate that the diagnosis was depression. Dr Ford has continued to certify total incapacity. The last certificate before me bears date 9 November 2017 and states the plaintiff was totally incapacitated for work from 1 November 2017 to 31 January 2018.
Before leaving the meeting of 17 February 2016 I should add this. The plaintiff made a formal statement to an investigator retained by the insurer of the second defendant on 9 March 2016. Three paragraphs of that statement have been tendered in evidence. They contain this matter: "They went and saw about any records in regards to my bad back and asked whether I had been on compo with my back. I told them I had not made any claim, I had seen the MAC doctor and just worked on the drills and graders until I retire so I didn't injure my back any further. They went and searched for the records and came back telling me that there was no record of that back injury and nothing to say I was not to operate the trucks. Terry told me that I was going to be re trained in operation of the trucks and would be back working on the trucks. Terry said, 'The trainer is waiting [out] there for you. I want you to go and sit on that computer desk. I don't want you to move away from the computer, not for a crib break, or smoke, or anything'. At the end of the meeting he came over to me in a very threatening and intimidating low voice said, 'I tell you now, that if you set one foot outside this office without your crib hat on, you don't have your safety glasses on, take one step out of line, you won't have a job. As long as I am here if you cross that line once, your job will be gone'."
I accept the accuracy of the first of those three paragraphs. The substance of the third paragraph was in fact denied by Mr O'Brien and I think it unlikely that he would have told the plaintiff that he had to sit at the computer without moving. It may represent an exaggeration by the plaintiff or it could represent an overreaction by Mr O'Brien. Suffice it to say that I am not persuaded of the accuracy of the last part of the third paragraph.
However, it is abundantly clear that even before leaving Mt Arthur Coal Mine, the plaintiff was very upset. In fact his upset was communicated by Mr Bailey to Mr O'Brien and they were eager to make sure that it was safe for the plaintiff to drive back into "town," that is to Singleton, where the plaintiff resided in a caravan when he was performing shift work at the mine. There were obvious concerns for the plaintiff's safety by both Mr Bailey and Mr O'Brien. They must have perceived that the plaintiff had taken what was said at the meeting badly. If what the plaintiff said in exhibit C be true, and there is nothing to suggest otherwise, he was obviously very disturbed on the afternoon of 17 February and during the early hours of 18 February and was clearly very upset when interviewed by Dr Ford. Dr Ford in his clinical notes thought there had been the relapse of a problem diagnosed initially in 2013, a diagnosis of the depressive illness which required the prescription of Avanza.
On 19 February 2016 an officer of Coal Mines Insurance sent to Dr Ford a questionnaire which essentially asked the doctor to provide a brief report. The doctor signed his reply on 13 April 2016 but the reply is dated on its first page as being sent on 14 April 2016. According to the answer to the first question, the diagnosis of Dr Ford was reactive depression and anxiety, based on an allegation of bullying and harassment at work. Interestingly enough, to show that medical practitioners are always not right, the doctor's history contains an allegation that the plaintiff's superintendent, Mr O'Brien, called the plaintiff a "thug," when in fact the history was that the plaintiff called Mr O'Brien a thug. The important thing though is the diagnosis. Reactive depression is not a current diagnosis according to DSM 5. The appropriate terminology now is an adjustment disorder. The plaintiff still has prescribed to him Avanza and as far as I am aware still takes that medication.
On 3 March 2016 the plaintiff was examined by Dr Doron Samuell, a clinical and forensic psychiatrist, at the request of the solicitor for the insurer of the second defendant. Dr Samuell did not believe the plaintiff had suffered from any psychiatric illness.
The plaintiff came under the care of the Mental Health Team at the Mudgee Hospital after speaking to them on the telephone on 13 May 2016. That led to the plaintiff's having an examination by video link with Dr Faisal Yaseen, the psychiatric registrar at the Orange Base Hospital. That examination was held on 18 May 2016. The diagnosis of Dr Yaseen was of a depressive episode of moderate severity without psychosis, likely triggered by the work related incident of which he had a history, that of 17 February 2016. Dr Yaseen believed that the plaintiff's drug Avanza should be increased to 45 milligrams each evening. That was attended to by Dr Ford. The diagnosis offered by the Mental Health Team Nurse, Ms Clift, was of depression.
The plaintiff was reviewed by Dr Yaseen on 1 June 2016, again by video link. Dr Yaseen maintained the diagnosis of a depressive episode of moderate severity without psychosis. He also added on this occasion the additional diagnosis of "increased alcohol use." That is really not a diagnosis, but alcohol misuse is a diagnosis. I am dealing with this medical evidence in shorthand at this stage for a certain purpose. Dr Yaseen reviewed the plaintiff on 25 July 2016 and maintained the two diagnoses I have just stated. On that occasion he requested that the plaintiff's drug, Avanza, be increased to 60 milligrams to be taken each evening. I note that by 28 July 2016 Dr Ford had increased the plaintiff's total intake of Avanza to 60 milligrams, as he had been advised by Dr Yaseen, but ordered that the plaintiff take 45 milligrams of Avanza, one daily, and an extra 15 milligrams at night.
The plaintiff was discharged from the care of the Mudgee Mental Health Team on 13 September 2016 after members of that team had taken advice from Dr Rodney Juratowitch, whose position is not described in the notes. At some stage the plaintiff came under the care of Dr Monika Castleman, a clinical psychologist at Greta. She wrote a report of 24 May 2016 to Dr Ford. She diagnosed a major depressive disorder, noting that the plaintiff on the administration of the DASS interview was rated in the extremely severe range for depression and anxiety and in the milder range for stress. The other psychiatric evidence available to me is a report of Dr Christopher Bench, qualified by the plaintiff's solicitors, he examined him on 24 March 2017. Dr Bench diagnosed a major depressive episode and also alcohol dependence.
The weight of the medical evidence is clearly in favour of the proposition that the plaintiff had an episode of major depression triggered off by the interaction with his superiors at the Mt Arthur Coal Mine on 17 February 2016. A major depressive disorder is a biochemical abnormality of the brain. I have heard this repeatedly over the last 24 years on the Bench. An episode of a major depressive order can be triggered by an external stressor, and here the evidence persuades me that the events of 17 February 2016 triggered off an episode of a major depressive disorder. That is a recognised diagnosis.

Defence under s 11A

The defendant raises a defence under s 11A of the Workers Compensation Act 1987. As the case has been presented and argued, of the numerous matters referred to in s 11A, the defendant's primary defence is on the issue of "discipline." Also mentioned at the commencement of the hearing was the concept of "performance appraisal," and at the end of the day also raised was the question of "transfer." However, the plaintiff was not actually transferred. He had hovering over him the prospect of being transferred from the operation of drilling equipment back to driving trucks. However, that had not actually occurred. The defendant had not made any decision. Mr O'Brien made it clear that he was unable to make any decision about the plaintiff's employment without first discussing it with his manager, Mr Dan Redman. That discussion never occurred because of the plaintiff's going off work on the afternoon of 17 April 2016.
The parties agreed that the meaning I gave to the word "discipline" in Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339; [2002] NSWCC 25 was correct and that the employer's process of drawing worker's unsatisfactory work performance to her attention and asking her to improve her performance and suggesting ways of doing so and of offering assistance and training was "discipline." Here the matter had gone further, the plaintiff had been given a stage one verbal warning and a stage two written warning and was being considered for stage three, which could lead to termination of his services. There was a disciplinary structure involved. Section 11A(1) commences with these words: "No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to..."
There follow a number of items which of course include transfer, performance appraisal and discipline. The action of the employer must be reasonable. The case law on the meaning of "reasonable" is extensive. The reasonableness of the employer's action is to be determined objectively. The question is one of fact applying an objective test. In Ivanisevic v Laudet Pty Ltd (Truss CCJ, 25 November 1998, unreported), her Honour said: "In my view, when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected."
That passage was quoted with approval by the Court of Appeal in the Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239.
I have reached the view that the comments made by Mr O'Brien that the plaintiff's supervisors had nothing good to say about the plaintiff and that the plaintiff's fellow workers had nothing good to say about the plaintiff, and that the majority of them did not want to work with him were unreasonable. Clearly a number of adverse complaints had been made over a three year period about the plaintiff by a number of his supervisors. However, it must be recalled that on 29 September 2013 in the file note which is exhibit 18, David Seabrook remarked that the plaintiff's overall attitude towards work had greatly improved as had his attendance and that led Mr Seabrook to thank the plaintiff for his effort. It must also be recalled that on a number of occasions it had been pointed out to the plaintiff that there was no complaint about his work doing the drilling but the complaints were directed to things such as his behaviour at signing off time and about certain other safety breaches such as at the time of driving a light vehicle through the witches hats. It was only when the question of hot seating arose that there was a complaint made about the plaintiff's work with the drills, a problem which had arisen only at the end of a period of three years, or to use the time scale used by Mr O'Brien, of two and a half years.
The important point about the comments made by Mr O'Brien were that they were a serious and unnecessary blow to the plaintiff's psyche, a serious and unnecessary blow to his self-esteem and his self-worth. The plaintiff put himself forward as being well liked by his workmates. It was quite open on the evidence available for Mr O'Brien to comment that the plaintiff certainly was not well regarded by a number of his supervisors at various times, but to say to the worker that his fellow workers did not have anything good to say about him was, in my view, unjustified on the available evidence. Furthermore, Mr O'Brien had only been working in his role since the end of 2015 and would not have had an opportunity of interviewing all of those with whom the plaintiff was required to work from time to time.
I have heard and seen the four witnesses called by the defendant. My assessment of Mr Clydesdale, Ms Barr and Mr Bailey was that they were fair and even handed in their dealings with the plaintiff. However, I can accept from Mr O'Brien's demeanour and the tone of his evidence that he could well be abrupt, direct, no-nonsense and might leave someone on the wrong end of a conversation, such as the plaintiff, with the impression that he was a "thug," which I believe to be a harsh appellation, but the term "bully or martinet," might be more appropriate. I personally would describe Mr O'Brien as a "no nonsense" superintendent and sometimes his personality might clash with the personality of a person such as the plaintiff.
The other relevant provision of s 11A, which I have sought to deal with thus far is the requirement of subs (3) which provides this: "A 'psychological injury' is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system."
I accept that the plaintiff sustained a psychiatric illness, namely an episode of major depression, following upon his interaction with Mr O'Brien on 17 February 2016. Although this was in the context of a disciplinary context, I do not accept that the defendant has established on the balance of probabilities that the defendant's action was "reasonable action."

The medical evidence

Despite what he may have told legal practitioners subsequently, the plaintiff had earlier psychological or psychiatric problems. He saw Dr Ford on 17 February 2010 when Dr Ford diagnosed "reactive depression" and insomnia following the plaintiff's wife walking out on him on 14 February 2010. The plaintiff told the doctor that he suspected that his wife was having an affair. Later he was to tell the doctor that his wife was having an affair with a workmate of the plaintiff which would have added, no doubt, to the extent of his psychic distress. On 17 February 2010 Dr Ford noted that the plaintiff had increased his alcohol consumption to 20 schooners of beer a day to help him sleep. It was then that Dr Ford first prescribed Avanza, 30 milligrams at night. The plaintiff went back to seeing Dr Ford on 4 March 2010 and the doctor noted that the plaintiff still was not sleeping well and was still "teary." Again the Avanza was increased on this occasion to 45 milligrams at night. The plaintiff returned to see the doctor on 12 March 2010 when the plaintiff reported that he'd responded well to the higher dose of Avanza and he was seeing a psychologist and his sleeping had improved such that he could sleep for between nine and ten hours each night. The plaintiff told the doctor that he needed another week off work and the doctor issued a certificate of unfitness for work from 13 to 21 March 2010. On 22 March 2010 the plaintiff told Dr Ford he was not ready for work, that he had forgotten to take his medication on the previous day and that he had "lost it a little bit." The notes record that the plaintiff's former wife was threatening him and "throwing shit at me," and that she had gone to live in Sydney with an aunt. The plaintiff was given a certificate to stay off work until 9 April 2010. The doctor reported the plaintiff was seeing a psychologist, Martin Peters.
On 12 April 2010 the plaintiff told Dr Ford that his depression had much improved, that he accepted that his marriage had ended, but he still needed further time off work. He was still taking 45 milligrams of Avanza each night. On 19 April 2010 Dr Ford noted the plaintiff's depression had settled and that he could return to work on 21 April 2010. However, the plaintiff was still taking Avanza in August 2010 and Dr Ford noted that he now had a new partner and that he was awaiting a financial settlement of his matrimonial problems. The doctor reported a relapse of depression for one week in December 2010 following upon the cessation of Avanza and Avanza was again prescribed to him. The next prescription for Avanza appears at the time of the event of the consultation on 5 June 2013 to which I have already referred.
When the plaintiff phoned the Mental Health Team at Mudgee Hospital he gave a history that he had never suffered from any mental health problem and when questioned denied any history of anxiety, panic, depression, mania or psychosis. That history is unfortunately incorrect. By 13 May when the plaintiff phoned the Mental Health Team he had not seen any psychiatrist. The plaintiff told the Mental Health Team that he felt worthless and was sitting watching television for long periods, had increased his cigarette habit to 60 per day, and although he'd previously drunk about five beers on Fridays and Saturdays, he was now drinking ten beers daily. There was no risk of suicide or the like at that time.
When interviewed by Dr Yaseen on 18 May, the plaintiff complained of disturbed sleep, of a reduction in appetite and losing between eight and ten kilograms in weight. The plaintiff reported low levels of energy and of a loss of enjoyment of life, anhedonia and an inability to concentrate. The plaintiff also complained of feeling worthless and feeling low in confidence. The plaintiff told the doctor that he became tearful when he talked about what happened at work, for example when speaking with his mates from work about it. The plaintiff was still tearful when describing events to me in the witness box last week. The plaintiff denied to Dr Yaseen any previous mental health problems, which is unfortunate. The plaintiff also told Dr Yaseen he was now drinking ten beers each day and that his cigarette habit had increased to 70 per day. On mental health state examination, Dr Yaseen noted the plaintiff was tearful during the interview, that his mood was low and flat, and that was an objective assessment by the doctor. The doctor also noted that the plaintiff described biological symptoms of depression with low confidence and feeling worthless. The biological symptoms of depression are something that cannot be feigned and fortify me in the view that the plaintiff actually suffered from an episode of a major depressive disorder. When reviewed by Dr Yaseen on 1 June 2016, the doctor noted that the plaintiff was tearful on a couple of occasions, but also he was able to smile appropriately at times during the interview. The plaintiff described his mood to the doctor as "better" and the doctor thought objectively that the plaintiff was more reactive on that day, indicating some improvement in his condition.
On 10 June 2016 a member of the Mental Health Team noted some improvement in the plaintiff's motivation. However, generally his motivation levels remained low. It was noted at that time that the plaintiff had plans to go away with his partner on the following Saturday for a period of three weeks' holiday in Sydney visiting family members. In the interim the plaintiff had been advised to see a psychologist in Singleton and he had been seeing Monika Castleman, but he had only seen her twice. That is the same lady who I described as being at Greta. The plaintiff told a mental health nurse on 10 June 2016 that he still had eight sessions to attend with Ms Castleman.
On 16 June 2016 the plaintiff's partner reported that the plaintiff had gone away with nine friends on a fishing trip to the top end of Australia on a charter boat for a period of ten days. That trip had been planned approximately 12 months earlier, but the plaintiff had decided to go on it in recent times. The plaintiff did go on that fishing trip. On 19 July 2016 the Mental Health Team noted the plaintiff was improved but was still not yet his old self. On 21 July 2016 there was some improvement noted because the plaintiff removed his sunglasses when being interviewed, although donned them again when he became "teary." The assessment made was that the plaintiff's mood had improved but he was still not back to his normal, happy self. He continued to be irritable and snappy at times but his motivation was improving. His sleep had improved and his eating had improved. The notes go on to say this: "Not drinking daily for over two weeks now. Maybe only one two drinks, one two days a week. Not drinking at home, goes to pub if he has a drink."
Perhaps the decrease in the plaintiff's alcohol intake led to improvement.
In an interview with Dr Yaseen on 25 July 2016 it is important to note certain matters. The report commences thus: "Mark reported feeling 'better than before' and shared that his mood has lifted, he is not crying anymore, not getting suicidal ideation and he is sleeping better. Furthermore, there is improvement in energy level and he is able to motivate himself to assist his wife in household chores and has started enjoying things, eg, he went to a fishing trip with his friends and reported to have had a reasonably good time there. He also reported that he has cut down on drinking significantly, now only drinks three four beers over the weekend and none during the week. Discussed impact of drinking on mood and anxiety and positive feedback provided on reduction of alcohol consumption. Mark shared that he does not get as irritable as he did before. Mark reported improved appetite and feels he may have put on weight but no objective account provided."
When Dr Yaseen spoke to the plaintiff's de facto wife, she told him that the plaintiff was not tearful any longer, that his energy and motivation had improved, as had his level of enjoyment of life, and she thought the plaintiff was sleeping well at night. Dr Yaseen accepted the plaintiff's mood was better and objectively it was reactive but with low affect.
In July 2016 the plaintiff commenced to see a psychologist know to him merely as Jo at Mudgee Psychology. The plaintiff's first appointment with her was on 29 July 2016. On 9 August 2016 the plaintiff presented to the Mental Health Team "much brighter and happier today." The plaintiff said that his mood was much better. He went on to state that he was feeling tired from the medication he was taking, but stated that he could deal with that tiredness. He told the Mental Health Team that he was much happier in himself. The notes continue thus: "Has appointment to see Jo at Mudgee Psychology next week. Has been doing a couple of odd days' work with a friend enjoying this."
The plaintiff told me, as he was later to tell Dr Bench, that this was in fact assisting a friend of his who was doing some work renovating the plaintiff's property at Windeyer. There is no evidence to suggest otherwise. However, the important thing to note is the plaintiff was doing some work and that he was enjoying doing so.
The next contact by the Mental Health Team was on 17 August 2016, but they were unable to speak to the plaintiff himself because he was visiting his brother at Mungindi. The plaintiff's partner told the mental health nurse the plaintiff had had an accident with petrol and had sustained burns to his stomach, which required daily dressing at hospital. What led to that injury I know not. On 2 September 2016 the Mental Health Team spoke with the plaintiff on the telephone. The notes say this: "Mark reports mood is much better feels much happier in himself. Motivation increased attending to jobs around the property. States has been seeing Jo, the psychologist reports this is going well. Feels that his self-confidence is improving since seeing the psychologist. Offered appointment to see Mental Health states he doesn't think he needs appointment at this stage. Has appointment next week to see psychologist again."
The note continues with a plan made by the Mental Health Team.
The next relevant note is on 13 September 2016 when the mental health nurse spoke with both the plaintiff and his partner. The notes continue thus: "On all reports Mark is very much improved. Mood good motivation - good. Attending to jobs around the farm, sleeping back to normal. Denies any form of suicidal thoughts or thought to harm others. Continues to see Jo from Mudgee Psychology on a regular basis. Discuss discharge from service. Mark happy to be discharged."
And so it came to pass.
The only other medical evidence of a psychiatric nature before me is that of Dr Christopher Bench following upon his examination of the plaintiff on 24 March 2017. What this report paints to me is the picture of a different man to the man that is last described in the notes of the Mudgee Mental Health Team. Under the heading "Substance abuse history," Dr Bench recorded this: "The claimant started drinking alcohol at age 17. He noted having been a daily drinker from February 2016 to the present. He noted he drinks anywhere from two to fifteen schooners of mid strength beer (fifteen standard drinks) or a bottle of rum (twenty-five standard drinks) on a daily basis. He denied any history of alcoholic blackouts. He noted the longest abstinence in the past 13 month has been four days. He last drank on the night prior to the evaluation."
The substance abuse history goes on to speak of some dalliance with cannabis, which really is of no moment. When taking the past psychiatric history, the doctor noted that the plaintiff had his first mental health contact in 2010 in the context of marital separation but denied to Dr Bench any changes in his mood or biological functioning, which is quite inconsistent with the records of Dr Ford. The plaintiff told Dr Bench ofhaving seen a psychologist, Joanne Ratcliffe, and then seeing a psychologist merely known as Jo at Mudgee Psychology. As far as the doctor could work out, the plaintiff had been provided with cognitive behaviour therapy by Jo, but he had only four sessions of that. It would therefore appear that the plaintiff stopped seeing Jo at Mudgee Psychology shortly after his discharge from the Mudgee Mental Health Team.
The plaintiff described his recent mood to Dr Bench as being "flat." He again maintained a loss of weight between eight and nine kilograms, describing his appetite as erratic. He described his energy level as being "zero." The plaintiff described his anxiety as being "really high...agitated." The plaintiff was remiss by this stage in his personal hygiene and self care, showering and brushing his teeth every two or three days. On mental health examination Dr Bench thought that the plaintiff's observed emotional tone was constricted within the anxious and dysphoric range. The doctor noted that he was tearful, almost throughout the entire evaluation.
The doctor was asked a number of questions by the solicitors who qualified him. The third question is the treatment which the doctor considered necessary for the plaintiff. The doctor said this: "The claimant needs to abstain from alcohol. He has repeatedly failed to abstain from alcohol over the course of the past 12 months. In this context, it is the evaluator's opinion he should be referred to a specialist substance abuse service for an evaluation of his substance abuse treatment needs. He may require a period of inpatient detoxification or rehabilitation. He will certainly require further substance abuse counselling likely for 12 months after having achieved abstinence. It is outside my awareness or expertise the cost associated with same."
The doctor then goes on to give an estimate of the costs of regular visits to his general practitioner, Dr Ford, and of recommended referral back to the psychologist at Mudgee Psychology for the continuation of the cognitive behaviour therapy, but he thought at least 12 to 16 further sessions were required.
One of the questions asked of the doctor was whether there was any permanent or temporary loss of earning capacity. The doctor said this: "The claimant has been certified totally unfit to work for the past 13 months. I would concur with same. He is likely to remain totally unfit to work so long as he has his current level of psychiatric symptomatology. It is the evaluator's opinion his symptomology is unlikely to shift significantly until he participates in appropriate psychiatric and substance abuse treatment. In this context, I would recommend an assessment for any permanent loss of earning capacity three to six months after commencing appropriate psychiatric and substance abuse treatment."
Something happened between the plaintiff's discharge from the Mudgee Mental Health Team in September of 2016 and his evaluation by Dr Bench on 24 March 2017. The plaintiff relapsed. The relapse appears to have been generated by the plaintiff's ingestion of alcohol. Things were promising for the plaintiff's recovery in September 2016, but the prognosis was bleak in March 2017 without abstinence from alcohol. The alcohol was voluntarily taken. The plaintiff may believe that taking alcohol relieved his symptoms, but that was not the medical advice that was given to him. The medical advice given to him was to the contrary.

Findings on capacity

I am prepared to accept that the plaintiff was totally incapacitated for a period following the interview on 17 February 2016. However, some change occurred after September 2017 and prior to the plaintiff's being interviewed by Dr Bench on 27 March 2017. It is necessary for me to be arbitrary. Had the plaintiff not resorted to alcohol use, I believe he would have essentially recovered from his psychiatric illness within about nine month of the cessation of work on 17 February 2016. I am prepared to find that the plaintiff was totally incapacitated for work from 18 February 2016 until 17 December 2016.
The question then is, has the plaintiff had an incapacity since that time? One simple answer to that question is the fact that the plaintiff elected to take a voluntary early redundancy from the second defendant's employment on 6 May 2016. At the time that the total incapacity ends the plaintiff had withdrawn himself from the employment of the first defendant. He told me that he does not believe that he could be employed by anybody doing anything because somebody might shout at him. That to me has all the hallmarks of exaggeration and may be motivated by the plaintiff's alcoholism. However, the fact remains that this man had for many years driven in the coal mining industry heavy plant and machinery. Prior to joining the coal mining industry he had driven heavy plant and machinery in the construction business, in railway construction and, for example, he might have done or would have been able to do similar work in the road building business, for which there are many opportunities at the current time. In fact, as a Sydney motorist, far too many opportunities at the current time.
According to exhibit A the plaintiff would have been earning but for injury in the coal mining industry $2,692.30 per week. As at May 2016 average weekly earnings for fulltime employed adults in the mining industry was $2,780.20 taking into account overtime. Not taking into account overtime, average weekly earnings were $2,659.50, which is almost the same as what is shown in exhibit A, the plaintiff's wages schedule. As at May 2016 average weekly earnings for those in in the construction industry were $1,534.20. Of course those in the construction industry include builders' labourers, bricklayers' labourers and tradesmen such as builders, carpenters, bricklayers, plumbers and electricians, but also include those who drive plant and machinery. Doing the best I can, I believe that uninjured in the open labour market outside the mining industry the plaintiff could have been earning at all material times $1,500 per week. That is at the top end of the equation under s 11(1).
The question then becomes, what could the plaintiff do in his injured state in the open labour market? Even with a bad back and a painful knee, the plaintiff could drive as a courier, could drive light vans delivering e parcels and the like throughout the State. He may be able to drive trucks on the highways of the State between major centres, especially the trucks can be loaded and unloaded by forklifts or merely where he was towing a trailer loaded with container. In other words, the plaintiff could do work which did not aggravate his back or knee in ordinary trucking work. I believe the plaintiff could sell his labour for at least $30 an hour, which indicates to me an ability to earn in the open labour market about $1,150 per week. The difference is $350.
However, I have a discretion. That is a discretion which should be exercised in this case. The plaintiff has not really actively looked for work. He told me that he considered one position and make an application to the local council for clerical work but was unsuccessful in that regard. He could certainly do more than clerical work, in which field he has no background. When the plaintiff has not been actively looking for work, it makes his economic loss less significant. It also makes the Court's job harder. Furthermore, the plaintiff will not find any suitable work until he gives up his alcohol intake as described by Dr Bench. Doing the best I can in the exercise of my discretion under s 11(1), I believe the appropriate finding is the plaintiff's economic loss as a result of his physical condition to be $250 per week. I am not persuaded that his psychiatric problems would prevent him earning the sum of $1,150 per week. Furthermore, absent the alcohol intake, I am confident the plaintiff has fully recovered from the effects of the unfortunate interview on 17 February 2016 with Mr O'Brien.

Award

I have inquired of counsel for the plaintiff and the solicitor for the defendants whether any further reasons for judgment are required and I am told that none is so required.
For those reasons, I make the following awards against the first respondent: 1. for $14,883.75 for 15% loss of efficient use of the plaintiff's right non dominant arm. 2. for $13,000 pursuant to s 67.
I make the following awards against the second defendant: 1. for $1,177.44 from 18 February 2016 to 17 August 2016; 2. for $491.90 per week from 18 August 2016 to 30 September 2016; 3. for $495.60 per week from 1 October 2016 to 11 October 2016; and 4. for $403.40 per week from 12 October 2016 to 17 December 2016 pursuant to s 9; and 5. for $250.00 per week from 18 December 2016 to date and continuing pursuant to s 11(1). 6. for $10,716.30 for 13.5% impairment of the back. 7. $13,395.37 for 13.5% loss of efficient use of the right leg at or above the knee. 8. for $17,000 under s 67.
I order the second respondent to pay the plaintiff's hospital, medical and like expenses for treatment of his psychiatric condition from 18 February 2016 to 17 December 2016. I order the second defendant to pay the costs of the treatment of the plaintiff's back and right leg pursuant to s 60.
I order the defendants to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2019

(2002) 23 NSWCCR 339

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