Parkes v Mt Owen Pty Ltd & Anor - [2022] NSWSC 909 - NSWSC 2021 case summary — Zoe

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Parkes v Mt Owen Pty Ltd & Anor

[2022] NSWSC 909

Supreme Court of NSW|2021-06-24|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-06-24

Before

Campbell J

Catchwords

[2009] HCA 35 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
[1990] HCA 20 McLean v Tedman (1984) 155 CLR 306
[1984] HCA 60 Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 Nagle v Rottnest Island Authority (1993) 177 CLR 423
[1993] HCA 76 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 35 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638[1990] HCA 20 McLean v Tedman (1984) 155 CLR 306[1984] HCA 60 Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 Nagle v Rottnest Island Authority (1993) 177 CLR 423[1993] HCA 76 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225[1954] HCA 11 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626[1986] HCA 34 Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1[2003] NSWCA 47 State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

Judgment (30 paragraphs)

[1]

Judgment

The plaintiff ("Mr Parkes") claims damages for orthopaedic and psychiatric injury received in a work accident at the Glendale Coal Mine located in the Muswellbrook area of the upper Hunter Valley. The first defendant is Mt Owen Pty Ltd ("Mt Owen"), the proprietor and occupier of the mine. The second defendant is Titan Technicians Enterprise Pty Ltd ("Titan") engaged in the business of providing mining services including the hire of its workers' labour. Mr Parkes was, at the material time, employed by Titan and when injured, his labour and that of other Titan employees had been hired by Mt Owen.

[2]

Circumstances

Mr Parkes was working nightshift on 29 July 2017. He is a diesel or heavy vehicle mechanic by trade. He was working as part of a crew of three tradesmen whom Mt Owen designated "Maintenance Crew B" under the supervision of a Mt Owen supervisor, Mr Cameron Wallace, to carry out the scheduled 1000 hour service on a Caterpillar D10 bulldozer, the property of Mt Owen and designated DZ406. As it happened, the other members of Maintenance Crew B were also tradesmen employed by Titan, Mitchell Kemp and Timothy Colby.
When he was injured, Mr Parkes was engaged in the task of obtaining a hydraulic oil sample. Mr Kemp was also a plant mechanic. While not a qualified plant operator he had been accredited to operate the bulldozer for the limited purpose of the service. This additional qualification was a reason he was appointed as the person in charge of the operation by Mr Wallace. He was in the cab of bulldozer operating it and its attached implements. Mr Colby, a tradesman diesel mechanic, was engaged in the process of obtaining engine oil samples. Each of these samples is referred to as a scheduled oil sample ("SOS"). The process of obtaining an SOS referred to as "live testing" as the preferred method in use at Mt Owen involved taking a sample through an inspection port as the oil, either hydraulic or engine, passed through the system while the bulldozer's motor was running. An alternative method involving syphoning the oil by use of a vacuum pump with the motor off was available but not prescribed. The evidence established that the diesel mechanics, whether employed by Mt Owen or by Titan, preferred the probe method. Tools for both methods were available in Mt Owen's maintenance bay.
To obtain the required SOS, Mr Parkes was standing on a grouser plate of the right-hand dozer track. A grouser plate is the raised tread component of a caterpillar track. Mr Colby was on the left-hand dozer track accessing the engine oil sample port. Neither could see the other because their view was obstructed by the superstructure of the bulldozer. From his vantage point in the cab, Mr Kemp ought to have been able to see each of them in turn (Annexures A-E, of Exhibit 1D1). Why what happened next occurred is the subject of much controversy, but there was no question in my mind that in an attempt to speed up the process of obtaining the hydraulic SOS on a cold winter's night by increasing the oil pressure, Mr Kemp proceeded to operate the implement functions attached to the bulldozer which are raised and lowered by the hydraulic system. He first operated the "ripper" attached to the rear of the bulldozer and then the dozer blade at the front of the bulldozer. While lifting and lowering the blade, I infer, whether accidentally or deliberately, Mr Kemp initiated a "quick drop" manoeuvre of the blade, which as the expression makes clear, caused the blade to drop suddenly. Its descent is halted abruptly creating acceleration/deceleration forces. These forces caused the track on which Mr Parkes was standing to "flick up" suddenly crushing his right leg between the elevated track and the edge of an access or inspection platform over which Mr Parkes was leaning to access the sample port. Mr Colby, still standing on the track on the other side, was uninjured.
It is common ground that Mt Owen's risk assessment for mechanical live testing of equipment identified vehicle interaction with personnel in the commissioning area as a hazard. One of the controls prescribed was that the person in charge, here Mr Kemp, was to communicate an intention to initiate vehicle movement which the parties assumed included the movement of implements, which was not to be undertaken until all persons involved in the task were clear of the area, or the footprint of the machine (Exhibit JCB, tab 25, p. 180). More specifically, Mt Owen had prepared a Job Safety Analysis ("JSA") for mechanical live testing of equipment. It was the obligation of the person in charge to take other members of the crew through its various steps, requiring their acknowledgment of the process by initials or signature at various stages and the subsequent approval of the supervisor, here Mr Wallace, before the commencement of the work. The JSA (Exhibit JCB, tab 42, p. 297), completed by Mr Kemp, identified "the parts of the equipment required to be tested under 'live conditions'" as involving "movement checks" and "live samples". Among the potential hazards identified was "unplanned movement". The stipulated controls included "follow isolation procedure prior to and post live testing". The contents of this entry were acknowledged by all three members of the crew.
During a maintenance live testing task, "unplanned movement" and "personnel and equipment interaction" were identified as hazards by the JSA. The stipulated controls included: "Person in charge of live testing is to confirm all persons are out of the machine footprint before any equipment movement is undertaken". Again, each member of the crew acknowledged this requirement. Again, counsel were content to proceed on the common assumption that "equipment movement", whether planned or unplanned, included operating the implements attached to the equipment.
There is an entry in the JSA (Exhibit JCB, tab 42, p. 302), to which it will be necessary to return below.

[4]

True issues

Although it seemed at the hearing that there was hardly any detail that was not the subject of the utmost controversy, upon consideration the substantive areas of dispute are not great. Perhaps it is easier to first state what the issues are not. There is no doubt that Mr Parkes suffered an injury in the general circumstances I have outlined above. Moreover, in their joint report (Exhibit JCB, tab 72, p. 718ff) Dr Glitzman, an occupational physician, Dr Bodel, an orthopaedic surgeon and Dr Halliday, an orthopaedic surgeon, all agreed that Mr Parkes had probably developed a Complex Regional Pain Syndrome ("CRPS") of the right leg consequent on a soft tissues crush injury, which continued to affect him in a disabling way and which at least made him unfit for his pre-injury employment as a diesel mechanic in the mining industry. Dr Rowe, also an orthopaedic surgeon tended to agree, but he had not elicited signs of this condition on his assessment. He accepted, however, that the signs and symptoms of CRPS may wax and wane (Exhibit JCB, tab 72, p. 719).
The consultant psychiatrists, Dr Parmegiani, Dr Rice and Dr Samuell agreed that Mr Parkes has developed a recognised psychiatric illness as a result of the accident (Exhibit JCB, tab 73). Dr Parmegiani was of the view that the diagnosis was a chronic Post Traumatic Stress Disorder ("PTSD"); Dr Rice an Adjustment Disorder and Dr Samuell, also an Adjustment Disorder. Each also agreed that Mr Parkes had a Substance Abuse (mainly alcohol related) Disorder associated with the psychiatric diagnosis. The point of difference between them as to the diagnosis was whether the requirements of criterion A, being exposure to a life-threatening experience of imminent risk of severe injury, for the diagnosis of PTSD were satisfied in this case. The psychiatrists did not agree about whether his psychiatric condition diminished Mr Parkes' capacity for work. Notwithstanding the substantial areas of agreement amongst the principal medical experts, issues abound about the full nature and extent of Mr Parkes' injuries and disabilities and the appropriate measure of damages in respect of them.
Lest I be accused of putting the damages cart before the liability horse, in the circumstances I have relayed above, which are not the subject of any dispute, there can be no serious question that Mr Kemp (who was not called to give evidence by any party) was negligent whether the blade drop manoeuvre was deliberate or merely careless. In these circumstances, one or other of the defendants is bound to be vicariously liable for Mr Kemp's negligence. In this regard both Mt Owen and Titan, of course, accept that dual vicarious liability is not recognised as part of the common law of Australia: Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 ("Oceanic Crest Shipping") at 641, 646, and 685; Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 ("Day") at [23]-[33]; Hallmark Construction Pty Ltd v Harford [2020] NSWCA 41 ("Hallmark Construction"). As it is accepted that Titan was Mr Kemp's legal or general employer, the question is, has Titan discharged the onus of proving that his services had been transferred to Mt Owen pro hac vice?
Other liability issues concern whether either Mt Owen or Titan, leaving aside the vicarious liability of either of them for the negligence of Mr Kemp, breached a personal duty of care owed to Mr Parkes. While each accepts a duty is owed, they make common cause in denying breach. Both say that Mt Owen's risk assessment and the JSA for the specific task of carrying out the 1,000 hour service were all that reasonable care required in the case of a crew of qualified and experienced tradesmen in the field. That is to say, that apart from identifying the risk and managing it by reference to the content of the JSA, it was reasonable to leave Maintenance Crew B to the task, relying upon their own expertise as tradesmen.
In the event that either or both are liable for a breach of a personal duty owed to Mr Parkes, they both argue that he is guilty of contributory negligence. In this regard, it is put that I would infer that it was Mr Parkes who requested implement movement for the purpose of facilitating the flow of the hydraulic oil on a cold night; that he should have carried out his work from the platform adjacent to the operator's cab rather than from the bulldozer track; and he should have attempted to alight from the bulldozer at the first sign of movement of the implements bearing in mind the content of the JSA.
Titan has brought a cross-claim against Mt Owen seeking statutory contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("LRMPA") and for statutory indemnity under s 151Z(1)(d) WCA. Mt Owen has brought no cross-claim of its own. This does not preclude it from seeking statutory contribution: HIH Casualty & General Insurance Ltd v Pluim Constructions Pty Ltd [2000] NSWCA 281 at [81]-[82].

[5]

Contemporaneous evidence

Each of Mr Kemp, Mr Parkes, Mr Colby and Mr Wallace made a contemporaneous statement about the matter which have been tendered. As I have said Mr Kemp was not called by any party. The statements are relatively brief and provide an unvarnished account on what happened from the standpoint of each of them.
Mr Kemp's statement was made on 29 July 2017 and his signature was witnessed by Mr Wallace (Exhibit JCB, tab 43, pp. 306 - 309). After stating he was operating the machine for movement checks and live samples, he described "the incident sequence" in the following terms: "I was operating the machine for service live testing. I had to operate the blade to get the hydraulic oil sample, as I lowered the blade, the tracks of the machine jolted up. I thought the other fitter was kneeling on the step of the machine, but he was standing on the track which jarred up through his legs. After shutting the machine down, he approached me and told me. We [then] came and spoke with the supervisor." The "other fitter" is clearly Mr Parkes. He drew a diagram which showed Mr Parkes leaning forward over the step adjacent to the cab door, I infer attempting to draw the SOS. It is also clear, if this version is correct, Mr Kemp claims not to have seen where Mr Parkes was when he dropped the blade.
Mr Colby's statement is dated 30 July 2017 and is also witnessed by Mr Wallace. He too said he was carrying out "movement checks and SOS samples". He described the incident as follows: "[Mr Kemp] was operating as myself and [Mr Parkes] performed live testing movement checks. Once completing movement checks, [Mr Parkes] obtained transmission live sample. Communicating with [Mr Kemp] I mounted the [left hand] track accessed the engine filter housing and obtained the two engine SOS samples. [Mr Parkes] accessed the [right hand] track and was standing on the grouser plate to obtain the hydraulic SOS live sample. Communicating with [Mr Kemp] the operator he indicated he was going to [? now] lift the blade. I acknowledged and continued to obtain the engine SOS samples as the blade was moving up and down. Once the SOS sample was completed, I communicated to lower the blade and dismount the left-hand track. When [Mr Parkes] walked around he complained about pain in his leg from the body position while he was obtaining [hydraulic] SOS and blade was lifted and dropped causing him to jar his leg." He also drew a picture of Mr Parkes leaning over the footplate adjacent to the driver's cab door. Like Mr Kemp, he drew Mr Parkes with his back to the blade. From this account the first Mr Colby knew the blade was to be moved is when he received a signal from Mr Kemp. This is important because Mr Colby was standing near the left-side hydraulic arm and blade movement created an additional hazard (242.5 - .13T).
Mr Parkes' statement, also witnessed by Mr Wallace, was made on 29 July 2017. After stating he was obtaining a transmission oil sample, he answered the question, "Did you notice/observe anything unusual prior to or during the incident, sights, sounds, odours etc?" by writing, "Blade coming down hard jolting track upwards".
He described the incident in these terms: "Standing on track taking oil sample for hydraulic system. Hydraulic SOS had very slow pressure. Took around 5 - 10 minutes to obtain sample. I cleaned fitting out with Electro-clean Hydraulic. Hydraulic implements began operating because sample was taking a long time to obtain. Ripper first then blade. I was standing on track grouser with the middle of my boots, holding the deck with my left hand and pushing the sample up with my right hand. The blade coming down instead of the ripper has caused the tracks to flick up jolting the grouser up my foot."
It is common ground between the parties that Mr Kemp altered the JSA by adding entries after the incident, which he had Mr Parkes, but not Mr Colby, sign (Exhibit JCB, tab 42, p. 302 (p.9 JSA). I will quote it as appears. The first line quotes printed material on the form, and the second line the handwritten entries made by Mr Kemp. Obviously if these entries are additions made after the event, they are capable of being admissions by conduct admissible against which either of Mt Owen or Titan may be vicariously liable for Mr Kemp's conduct under s 87 Evidence Act 1995 (NSW). As Mr Kemp has not been given the opportunity of explaining himself, it is difficult to put the probative value of this material any higher than that.
In cross-examination, Mr Colby confirmed that his signature did not appear at page 9 of the JSA (232.45T). He could not recall whether the entries on page 9 were there or not when he signed page 10. If they had been, "most likely" he too would have been asked to sign (233.15 - .20T). In his witness statement prepared for the hearing dated 4 June 2021 (Exhibit JCB, tab 21, p. 160ff), Mr Wallace could not recall whether the entries on page 9 were on the JSA when he approved it "prior to the task being undertaken" ([22], p. 163). Interestingly, he said: "Had I noticed that on the JSA at the time I would have asked [Mr Kemp] if he really needed to use the blade and otherwise suggested he use the ripper to produce oil pressure". (My emphasis.) In cross-examination Mr Wallace said that if he was not happy with the JSA he would have stepped in, to have it "tightened and made better" (135.25T). Had he noticed that Mr Kemp was intending to use the blade to produce hydraulic oil pressure, Mr Wallace would have directed him not to do that (136.30 - .35T). He also said that he firmly would have directed a fitter standing on the tracks during live testing to move (136.40T). He agreed later in further cross-examination that he would "certainly have taken action in relation to" the additions at page 9 of the JSA (140.30T). His position was that the real danger was standing on the tracks while the implements were being operated. To obtain the hydraulic oil sample using the probe method the bulldozer's engine had to be turned on (140.45T - 141.2T). This is what live testing means. Indeed, as I have said, there was no other way of obtaining a live SOS of engine oil than standing on the track. There was no platform that could be utilised to fulfil that operation.
Mr Wallace prepared his own typewritten statement concerning the incident on 30 July 2017 (Exhibit JCB, Tab 46, p. 325). It did not deal with the fact of the incident. He confirmed he allocated the service on DZ406 to Maintenance Crew B. He checked that Mr Kemp had the "required competency" to operate the bulldozer and that he was responsible for filling in the JSA. He visited the job during the initial live testing and was satisfied it "was being completed as per procedures with all controls in place". He was then called away to other duties. He received an oral report of Mr Parkes injury at about 10:30 p.m. It is a not insignificant circumstance that Mt Owen was subject to industrial action by its own staff who would generally speaking normally have been performing this work on 29 July 2017. I infer that because of the industrial action, the mines usual "first responders" were not available. For this reason, Mr Wallace decided to take Mr Parkes to hospital himself. At the hospital he was met by Mt Owen's H & S personnel and personnel from Titan as he had arranged.
An investigation into the incident was initiated by Mt Owen and the report completed on 9 October 2017 was in evidence as Exhibit B. In part the investigation records the following matters, describing the people involved: "Glen Parkes - heavy vehicle mechanic appointed, Glendale experience since May 2017. Previous injury to right leg (5 years prior) resulted with a rod and pin being inserted in the lower leg. Tim Colby - heavy vehicle mechanic appointed. Tim was recently inducted in July. Mitch Kemp - heavy vehicle mechanic appointed, D10T limited movement competency; authorised for live testing and person in charge of live testing. [Mr Kemp] has been on site for over 3 years. Tim and Glen form supplementary labour, while Mitch is FTE. Glen had worked nightshift on previous shift. Mitch had worked the previous 2 night shifts prior to the shift the accident occurred on. Mitchell Kemp site authorised for live testing and person in charge of live testing. Cameron Wallace was the supervisor on shift - covering shift, however, was familiar with personnel. Personnel on the task did not identify the hazards within the area. Glen and Tim stood on the tracks of the dozer while the implements were being operated. Glen Parkes wasn't aware that the blade was going to move, and instead he thought the ripper would be moving - information not communicated by the operator (Mitch Kemp)."
I interpolate "FTE" is an initialism for "full time equivalent" (see JCB, tab 17, Annexure A, p. 126). Mr Talintyre, who appeared with Ms Cameron for Mt Owen, objected to Mr King SC, who appeared with Mr Chiu for Titan, reminding me of that during addresses (345.5T). When I enquired, "what else would it mean? Is there any doubt?", I did not understand the objection to be persisted with. In any event it is the very type of question that could have been dealt with under s 70 Civil Procedure Act 2005 (NSW) had Mt Owen maintained the objection.
Under the heading "Organisation", Exhibit B recorded, "accepted practice of standing on tracks during live testing for the purpose of taking hydraulic oil sampling".
The causes of the incident were described as: right hand fender rocked downward following an unintended movement; operator was moving blade in an attempt to increase flow of hydraulic sample while fitter was standing on the tracks; sample point location is toward bottom of platform and there was no guard/fall protection on platform; and the location of the live test point on D10T dozers does not give consideration to the position of persons taking sample and requires fitters to hold pressure to obtain sample.
The investigation also concluded that there was no positive communication between the operator, Mr Kemp and the fitter, Mr Parkes. It was accepted that Mr Parkes was not aware that the blade was going to be moved rather than the ripper. The opinion was expressed that Mr Parkes contributed by placing himself in the position on the tracks while multiple functions were being performed on the bulldozer "which is in violation to the live testing procedure".
Exhibit C provides the following summary of the results of the investigation: "[Mr Parkes] was taking a hydraulic oil sample from the live testing on DZ406 hydraulic tank during a 1,000 hour service. As the oil was cold and not flowing freely the blade of DZ406B was moved up and down to circulate oil through the hydraulic tank assisting in the oil sampling process with the tradesperson position on the right track. The track jumped slightly when the drop function was utilised on the dozer. This unintended movement caused the track to jump, jarring the fitter's leg and bruising the arch of his foot." For completeness I record that while not a statement against interest and therefore not admissible as an admission as an exception to the hearsay rule, the "root cause" was subscribed to Mr Parkes placing himself "in a position on the tracks whilst multiple functions were being performed on DZ406 causing an unintended movement". Among the remedial actions suggested were "reversion to the vacuum pump method for taking hydraulic SOS and no live samples … if there are any machine movements taking place" on the bulldozer.

[6]

Evidence at the hearing

In his evidentiary statement dated 14 April 2020, (Exhibit JCB, Tab 18, p. 127ff), Mr Parkes said that he was trained to do the live testing by Mt Owen (p. 133 [30]). This was confirmed by Mr Wallace (134.30 - .35T; Exhibit JCB, Tab 20, p. 160 [6]). Given his previous qualifications, I infer before he started at Mt Owen, Mr Parkes would have had experience in similar operations. Mr Parkes said, "the oil was coming out a lot slower than it normally would". He states that he did not request Mr Kemp move the implements to improve the flow. Rather, while he was attempting to obtain the SOS, he noticed that the ripper at the rear of the bulldozer started to move. Despite the movement of the ripper the flow of hydraulic oil remained slow. Because he had his back to the front of the bulldozer, he was unaware that the blade was then moved or that a quick drop manoeuvre would be employed to quicken the flow of the hydraulic oil. He understood, "this is not normal procedure" at Mt Owen (p. 134 [33]). Normal procedure required the implements to remain at rest on the ground while a SOS is obtained. Had he known that Mr Kemp intended to proceed as he did, he would not have remained on the tracks or within the footprint of the machine. Had Mr Kemp signalled his intention to him, he believed there would have been an opportunity to get off the machine before the movement of the implements commenced. This involved climbing down from the machine as "it is too dangerous to jump off". There was no opportunity to dismount after Mr Kemp commenced moving the ripper.
When the quick drop occurred, Mr Parkes said his right knee was under the access platform and his left leg was more extended with his left foot back on a different grouser plate from the right foot. When the quick drop manoeuvre occurred, the track moved up and back causing his right knee and ankle "to compress between the track and the platform" (p. 135 [35]).
After the event, Mr Parkes said that Mr Kemp told him not to report the incident lest Mr Parkes get "kicked off the site for standing on the track".
It was put to Mr Parkes in a number of different ways in cross-examination that by his hand signals or otherwise he initiated the movement of the implements on the bulldozer to improve the flow of the hydraulic oil for his SOS (100.7T). He denied this.
I should also say that in his evidence-in-chief, Mr Parkes said that the entry on page 9 of the JSA was made after the incident (59.12T). Mr Parkes said that he had been taught to use the vacuum pump method to obtain SOS at TAFE and had learned to use the valve probe method at Mt Arthur mine (76.45T). It was at Mt Arthur that he undertook his apprenticeship (77.20T). He accepted in cross-examination that when he was taken through Mt Owen's process for live testing, it did not extend to a demonstration of how to take an oil sample on a bulldozer (84.20T). He volunteered that Mt Owen emphasised things he had already been taught including "keeping the vehicle still, staying out of the footprint and such" (84.27T). It was the safety components that were emphasised, he had to stay out of the footprint "if something was moving on the machine" (84.35T).
Mr Kemp was in control of the job (85.50T). Mr Parkes and Mr Colby were required to obey his instructions, "within reason" (86.15T). He agreed that the tradesmen in the team, after allocation of the machine and provision of the service sheets were left to their own devices about how to undertake the work (89.20T). That is because they were all experienced tradesmen.
He accepted that it was easy to access the platform adjacent to the driver's cab and that the sample point could be accessed by kneeling, crouching or squatting on that platform (91.35T). He accepted a tradesman would be closer to the sample point in that position (91.40T). He didn't regard that as a safer means of taking a sample than standing on the track (91.45T). But he said that the platform was wet after the bulldozer had been washed and seemed to reject the idea that he could kneel on the checker-plate surface to take the sample. He accepted that some fitters used the platform, wet or dry, for access to the sample point (94.20T). He did not accept that working from the platform was safer than working from the track (98.27T). He also accepted that Mr Kemp could not see the flow of oil from the cab and would not know directly whether it was flowing properly (99.30T). As I have said, he denied signalling Mr Kemp to initiate implement movement (100.5 - .15T).
He confirmed movement of the implements may be used to increase oil flow for SOS purposes (101.5T). Members of the team other than the bulldozer operator should be outside the footprint when that happens (101.10T). He thought the blade was usually preferred to the ripper "because the blade's heavier" (101.35T). Because of the noise of the bulldozer, it was normal for the members of the crew to communicate using hand-signals (105.30T). He said that he would be out of Mr Kemp's line of sight when he was leaning over the platform to access the sample point (105.39T). I interpolate again that at least he must be mistaken about this having regard to the photographs attached to exhibit 1D1. Having said that, in that position Mr Parkes had his back to the blade and Mr Kemp would be looking forward. Although I am satisfied Mr Parkes was visible through the transparent cab door neither he nor Mr Kemp would be looking at each other nor directly in each other's line of sight. He accepted that "in hindsight" he should have climbed off the bulldozer once the ripper started to move. He did not accept that he could have ascended the platform signalling Mr Kemp to stop moving the implements (109.10T - 110.10T).
He agreed that a quick drop of the blade was no part of the 1000 hour service on the bulldozer (112.50T - 113.11T). He did not receive any safety training from Titan (113.20T - 114.3T).
When cross-examined by Mr King he agreed that he performed such work as was allocated to him by Mt Owen supervisors as part of a team he was directed to join (117.5 - .28T). He was told what work he was to do at a "pre-shift meeting" and he took whatever instruction and direction the Mt Owen supervisors gave him (118.5 - .15T). He had been at Mt Owen for some months before his accident (118.44T). The work involved "a lot of live testing of bulldozers" including oil sampling (118.46T - 119.5T). He had often positioned himself on the tracks rather than anywhere else to get access to the hydraulic sample port and he had never been directed by Mt Owen supervisors not to do that (119.1 - .21T). He agreed that the only supervisors who were checking up on what was happening "were Mt Owen's supervisors" (120.23T). He had seen other fitters obtain the hydraulic SOS by squatting or crouching on the platform "but the majority stood on the track" in his experience (120.39T). In re-examination he confirmed that he had never accessed the sample port by crouching on the platform (123.20T). There were usually two supervisors in the workshop at Mt Owen when servicing bulldozers was undertaken. More than one bulldozer would be dealt with on the shift (124.35T).
Mr Wallace did not regard fitters standing on the track to obtain the hydraulic SOS as a "common practice" (131.19T). Had he seen it he would have "intervened" and counselled them about the risk associated with "the possibility the track would move". Before he became a supervisor, he carried the hydraulic SOS work from the platform (131.30T - 132.14T).
Mr Wallace wasn't quite sure for how long Mr Kemp had worked at Mt Owen but agreed it was "at least quite some months". While he was there, he was doing the same work as the Mt Owen fitters. On 29 July 2017 the Titan fitters were taking on work to alleviate the absence of the Mt Owen fitters (or mechanics) who were on strike (134.5T). Whether the fitters were from Titan or Mt Owen they performed tasks allocated by Mt Owen supervisors (135.45T).
Mr Wallace accepted that the tracks were "a perfectly usual place to stand" providing the implements are not operating. It's fine to stand on the tracks in certain circumstances. And the hydraulic SOS could be obtained from the tracks, but personally he would stand on the platform (142.5 - .21T). He thought, "if something were to happen" the fitter's leg could be caught between the track and the platform (142.30T). But I wondered whether that comment had been made with the benefit of hindsight having regard to what was known about the circumstances of Mr Parkes' injury.
Mr Colby said it was his practice to take hydraulic SOS from the platform (225.45T). In his witness statement dated 4 June 2021 (Exhibit JCB, Tab 20, p. 152ff) he said, "Obtaining SOS was a routine daily procedure" ([16]). He did not receive training because he had previously learned the procedure during his apprenticeship. He regarded the valve probe method as most commonly utilised ([21]).
When he arrived at Mt Owen on 29 July 2017, he was informed by Mr Wallace that he would be working as part of Maintenance Crew B (p. 155 [28]). Mr Wallace appointed Mr Kemp as the service leader. His account of the incident was inconsistent with his contemporaneous statement in as much as he said that when he received the signal from Mr Kemp that he was going to lift the blade he, "either moved off the machine or stood on the platform". Once he was safely off the track, he acknowledged this by a thumbs up after which Mr Kemp commenced to move the blade. From his experience the blade was moved to speed up the taking of the live SOS.
Although he said in cross-examination that a movement check on the implements was part of the 1000 hour service process, a quick drop was not (237.10 - .45T). He said that the valve probe method of obtaining an SOS was done with the motor running (239.2T). He added, "there's many methods to obtain a hydraulic oil sample or oil samples" (239.6T). When it was put that it was not done with neither the blade nor the ripper operating, he replied "it can be, yes". And he agreed that that meant it had to be done with the fitter on the machine while the movement was underway (239.5 - .20T). He said many things about live tests could be dangerous and it depended on identifying the hazard and the controls put in place (239.5 - .45T; 240.20 - .27T). When it was put to him that the easiest way to avoid a danger is not to attempt to take oil samples whilst either of the implements are operating, he responded (241.10T) "It's a common thing for most mechanics to take samples with implements being used. It's not unheard of. Most mechanics have, and will, do this every day with the implements being moved; however, there are controls in place, and that should be there to reduce the risk".
He agreed that the engine oil sample that he was taking on 29 June was near the hydraulic arms for the blade, and it was necessary for him to stand on the track (241.45T - 242.2T). He could not recall taking the engine oil samples while the blade was moved, but if he had it would have been a breach of the rule that implements should not be operated if people were within the footprint (242.25 - .30T). He acknowledged that his original contemporaneous statement was "factual and correct" (245.23T).
He accepted that the account given by him of his part in the operations in his contemporaneous statement was contrary to Mt Owen procedures because there were no additional steps in place, so he knew it was prohibited (248.25 - .35T).
While he could not recollect one way or the other whether he had seen the method used at Mt Owen, he insisted he had seen the method "previously at many places". He said (at 250.10 - .30T): "When the oil was cold, so when the machine was sitting for a period of time it would speed up the process of getting that hydraulic oil sample. … I'm saying that it is a common way to get this hydraulic oil sample when the oil is cold." This was so, even though it required someone to be on the machine while the implements were moving contrary to Mt Owen's rules.

[7]

Liability experts

The plaintiff relied upon the opinions of Mr Ross Underwood, a mechanical engineer whose report dated 7 February 2020 is Exhibit JCB, Tab 54. Titan relied upon the opinion of Professor Bruce Hebblewhite, a mining engineer and Professor of Mining Engineering at the University of New South Wales. Professor Hebblewhite's report dated 22 May 2020 is Exhibit JCB, Tab 55.
It is unnecessary to analyse the opinions of the experts as expressed in their primary reports because they conferred on 5 May 2021 and produced a joint report bearing that date (Exhibit JCB, Tab 56) agreeing in their opinions about the issues that the parties left for their consideration. Both were at pains to point out that neither was a specialist Caterpillar or hydraulics engineer. However, on the assumption that Mt Owen and/or Titan were aware that the hydraulic oil sample could be difficult to obtain at times no other procedure or system needed to be laid down over and above the steps set out in the JSA. Both felt that the option of attempting to "warm up the oil" prior to attempting to obtain the sample could have been done within the constraints of the existing live testing procedure without personnel standing on the equipment while any implement movement was taking place.
As to whether a specific instruction was required that tradesman mechanics or fitters were not to stand on the tracks, Professor Hebblewhite emphasised: "… there was no need to prevent standing on the tracks of the dozer during live testing, provided no movement of the dozer or dozer parts was taking place. This was spelt out in the live testing procedure, I do not believe that there was a requirement to instruct fitters not to stand on the tracks, provided they complied with the live test procedure. It was quite safe to do so, without any dozer component movements taking place." Mr Underwood agreed. He considered that the JSA in substance directed the fitters to remain out of the footprint while any functions of the machine were being operated. Professor Hebblewhite agreed saying: "It is the operating or functions of the machine that required people not to stand on the tracks as opposed to just doing live testing." They both agreed that the direction in the JSA that the person in charge confirm that all persons are out of the machine footprint before any equipment movement is undertaken is appropriate.
Professor Hebblewhite thought that a specific JSA for oil sampling would have been advantageous, however, if the existing JSA had been complied with in his view the incident would not have occurred. Mr Underwood agreed, adding that if it were thought necessary for the hydraulic oil to be warmed by operating the hydraulic system, the JSA should have "re-stated" that personnel other than the operator must be clear of the machine footprint before any machine function was engaged.

[8]

Initial fact finding relevant to liability

The circumstances I have set out (at [2] - [6] above) are not in dispute. Moreover, it appears that Mr Wallace, Mr Parkes and Mr Colby, bearing in mind I have not heard from Mr Kemp, all understood the expression "any equipment movement" in the risk assessment and JSA to embrace the movement of any part of the equipment including any attached implement or mechanical accessory. From their professional standpoint, Mr Underwood and Professor Hebblewhite clearly had the same understanding. Although Mr Parkes was in some ways a difficult witness who tended to be somewhat argumentative, I was impressed by his adamance that while hydraulically powered implement movement was employed to improve the flow of hydraulic SOS to facilitate the taking of samples, it could only be done when the mechanics responsible for collecting the samples were beyond the footprint of the machine. Whatever reservations I may have had at the time, having considered his evidence in the context of the whole of the evidence, I am satisfied on the balance of probabilities that that was his understanding when the accident happened, rather than a stance he has adopted subsequently. The aspects of his presentation which I found difficult, paradoxically make it unlikely that he was being subtle or sophisticated when answering questions in cross-examination.
I must say that from Mr Wallace's witness statement (see [21] above) I first thought that he was implying that he was aware of a practise where implements would be moved while the mechanics were collecting a SOS to assist the process. However, from the course of his evidence, I have formed the view that he would have countenanced implement movement to facilitate the collection of the SOS, but not when fitters were within the footprint of the bulldozer whether they were standing on the track or an available platform or somewhere else on the superstructure of the bulldozer. Mr Parkes' evidence provides some juxtaposition to Mr Wallace's view in as much as Mr Parkes says in his experience the blade is used rather than the ripper because its heavier and presumably requires more hydraulic effort producing the desired result sooner, but only when the other team members are outside the footprint.
I should say that I was impressed by the frankness of Mr Colby's evidence that it was common for the implements to be moved to quicken the flow of oil during live testing while mechanics or fitters, the terms are used interchangeably, were on or about the machine, provided proper controls were in place in the JSA. This account seemed to me to have a certain air of the practical reality of conditions prevailing in a heavy industrial workplace like an open cut mine. It also sounds a certain echo in Mr Kemp's ex post facto amendment of the JSA (see [20] above), although the additional control to simply "stand clear … as blade moves" is at best ambiguous as it does not specify that the control requires a worker to stand clear of the footprint of the machine. In one sense, as Mr Colby says if personnel are aware of the movement and are able to stand clear no difficulty is presented to experienced tradesmen by a slow movement of the ripper or the blade up and down of which the tradesman has notice. He thought a clearance of .5 metre from the hydraulic arm for the blade was adequate (247.45T) and he would not be talked out of it (247.50T - 248.5T). The experts, of course, were of a different view. But Mr Colby provides persuasive evidence of a practice, perhaps in the industry generally, rather than at Mt Owen, of permitting implement movement while tradesmen are present on the bulldozer actually in the process of collecting and SOS for the purpose of facilitating that collection. The proper controls seem to be prior warning of the commencement of movement of the implement (as opposed to the machine), an opportunity for the tradesman to stand clear of the moving parts and an appropriately slow or steady pace of movement of the relevant part. What is not permissible, including on Mr Colby's evidence, is the execution of a quick drop manoeuvre of the blade. Everyone agreed that a quick drop manoeuvre is no part of the scheduled maintenance steps to be carried out at the 1,000 hour service.
In the end I am satisfied that the best guide to the salient facts is provided by the contemporaneous documents. These include Exhibit B and C, although I accept that they are secondary documents. But they were produced by Mt Owen to record the outcome of the investigation into the incident for its own internal purposes and it is manifest that the parts I have referred to (at [23] - [28] above) by and large either record facts relayed by persons with direct knowledge of the representations recorded or are admissions by Mt Owen to the extent to which opinions are expressed and accordingly are admissible under s 69 Evidence Act. In any event, they were admitted without objection. On Mr Parkes' account ([19] above), the hydraulic oil "had very slow pressure" and it was taking a long time to obtain the sample. He attempted cleaning out the sample port. He became aware that Mr Kemp had commenced to operate "hydraulic implements", being the ripper. Then the blade was moved before dropping suddenly causing "the tracks to flick up". Probably from this the author of the internal investigation report (Exhibit B) has concluded Mr Parkes' was aware of the movement of the ripper but not of the sudden drop of the blade.
Mr Kemp's account (see [16] above) is quite notable for what he does not say. He does not say that he operated the implements at the request of Mr Parkes. In fact, to some extent he corroborates Mr Parkes because the obvious inference from what he says is that he did not see where Mr Parkes was: "I thought [Mr Parkes] was kneeling on the step of the machine". Interestingly Mr Kemp does not mention the ripper, but only the blade. He doesn't mention a quick drop, only lowering the blade, but there seems to be no question that a quick drop was involved. First, Mr Parkes said, "blade coming down hard jolting tracks upwards" ([18] above). Secondly, exhibit C makes it explicit that "the drop function was utilised". And thirdly, Exhibit B, by necessary implication: "right hand fender rocked downward following an unintended movement". The unintended movement took place in the course of Mr Kemp moving the blade to increase the flow of hydraulic oil to facilitate the collection of the sample.
Mr Colby's account is quite explicit. Mr Colby and Mr Parkes had performed the live testing movement checks while Mr Kemp was operating the implements. I infer from the context provided by Mr Colby's account that he and Mr Parkes made the necessary observations from ground level outside the machine's footprint. Once this function had been completed it was necessary for Mr Colby and Mr Parkes to obtain the live samples. Mr Colby communicated with Mr Kemp, I infer by hand signals, before he mounted the left hand track to access the engine filter housing to obtain his samples of engine oil.
Mr Parkes was on the right hand track on the grouser plate, although I infer he was not visible to Mr Colby because of the intervening superstructure of the bulldozer. Mr Kemp communicated to Mr Colby that he was going to lift the blade. Mr Kemp proceeded to move the blade up and down, from Mr Colby's account, I infer steadily. Once Mr Colby had his sample, he communicated by signal for Mr Kemp to lower the blade so Mr Colby could dismount. Although Mr Colby does not mention it, I infer that it was at this point that Mr Kemp unintentionally, but carelessly, initiated the sudden drop manoeuvre. Apparently, this did not affect Mr Colby, but given the position Mr Parkes was in, still obtaining his sample, the jolt caused the track to flick up crushing the lower part of his right leg between the extending track and the metal platform above. Mr Colby's account and what Mr Parkes said to him does include the version that "the blade was lifted and dropped causing him to jar his leg" and I accept that this is what happened.
Mr Colby, given his previous experience, as I have narrated above, was not perplexed by the movement of the implements during the process. In his previous experience it was common in the industry. On the balance of probabilities, I am of the view that Mr Kemp's amendment of the JSA corroborates Mr Colby's statement that the process can be safely done while implements are utilised to increase the flow of hydraulic oil provided appropriate controls are in place. In hindsight, Mr Kemp was conscious of that. What could not be controlled was the risk of an unintended and careless drop manoeuvre.
As I have said, (at [27] above) failure to communicate between Mr Kemp and Mr Parkes was a factor and Mt Owen concluded that Mr Parkes was not aware that the blade was going to be moved. While accepting that standing on the tracks during live testing was "an accepted practice" amongst tradesmen, the view is expressed in Exhibit C that the "root cause" was Mr Parkes placing himself on the tracks "whilst multiple functions were being performed … causing an unintended movement". This is, of course, a view expressed with the benefit of hindsight. As I have pointed out there is no platform for Mr Colby to stand on while he was collecting the engine oil sample. He can only stand on the tracks.

[9]

Liability consideration

I said at the outset of this judgment that there was no real issue that Mr Kemp's negligence was a cause of Mr Parkes' injury. The analysis of the evidence only serves to confirm that this is so. The real debate about liability in relation to Mr Kemp's negligence is the debate about who should be vicariously liable for the consequences of it. I will return to this question below.
Despite Mt Owen's robust position that only Titan can be personally liable for a breach of a non-delegable duty owed to Mr Parkes as its employee, I cannot agree. The circumstances are clearly covered by TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 ("TNT v Christie"). By this I mean there is no doubt that Mt Owen owed Mr Parkes the host employer's duty as described in that decision. It is, of course, a different question whether the duty was breached other than by the negligence of Mr Kemp.
Mr Roberts SC, who appeared with Mr Foord for the plaintiff, argued that quite apart from any question about Mr Owen's vicarious liability for the negligence of Mr Kemp, it owed Mr Parkes a non-delegable duty to take reasonable care not to expose him to an unnecessary risk of injury as a host employer in accordance with TNT v Christie. The content of the duty is identical to that of an employer. So far as breach of duty is concerned, Mr Roberts argued that there was a foreseeable and not insignificant risk of injury (subss 5B(1)(a) and (b) CLA), that the operators of the bulldozer engaged in a live testing procedure would move the implements while persons were on the machine performing other tasks including the collecting of oil samples. A reasonable host employer in the position of Mt Owen would have taken the precaution of requiring the vacuum pump syphoning method of collection to be used. Moreover, as operating implements to improve the flow of hydraulic oil is from time to time a necessary step in the collection of samples, the JSA should have spelt out the risk and the controls to be observed, as Mr Kemp seems to have appreciated after the event.
While acknowledging that Mr Underwood and Professor Hebblewhite considered such a measure "merely advantageous" as they were content that in the terms that the JSA addressed the issue, Mr Roberts submits that this conclusion of the joint experts is not justified when one considers Mr Colby's evidence.
As I have said Mr Talintyre disputed that this was a case to which TNT v Christie applied. He pointed to the consideration that Messrs Kemp, Colby and Parkes were operating as Titan team, Titan maintained a full suite of detailed occupational health and safety policies, risk assessments and the like, had supervisors on site as and when required and the Titan team was a team of tradesmen whom it was reasonable to leave to their own devices.
I do not accept Mr Talintyre's submissions in this regard. It is clear that Mt Owen was a host employer in the TNT v Christie sense. Although legally employed by Titan, Mr Kemp was a long time "full time equivalent" worker in Mt Owen's workforce and had been for about 3 years prior to the incident. While Mr Parkes and Mr Colby were newer, especially Mr Colby, to Mt Owen's operations, they were accepted as supplementary workers to take the place of Mt Owen's direct employees who were then on strike. They worked under the direct supervision of Mr Wallace, a full-time senior employee of Mt Owen. The risk assessment and JSA, the latter of which set out the system of work to be followed, were Mt Owen's documents, not Titan's. It was Mr Wallace, Mt Owen's supervisor, who signed off on or approved of the crew's consideration and adoption of the Mt Owen JSA. They were not "the Titan team", they constituted Mt Owen's Maintenance Crew B. I am well persuaded that the circumstances are such that the law of negligence imputes a TNT v Christie duty to Mt Owen and that duty was owed to Mr Parkes on 29 July 2017.

[10]

Did Mt Owen breach the personal duty owed to Mr Parkes?

Questions of breach, of course, have to be determined by reference to the provisions of Part 1A CLA, and in particular, ss 5B and 5C. The relevant risk of harm against which Mr Parkes says Mt Owen should have taken precautions is the risk that he would be injured while collecting live samples because of a sudden movement of a bulldozer implement while he was on the machine performing his usual work. I am well satisfied, taking a prospective view, that the risk was foreseeable. In saying this, I bear in mind that Mr Wallace was well aware of the need from time to time to operate the hydraulically driven implements to produce sufficient flow of hydraulic oil for the efficient collection of the necessary sample. Moreover, even though Mr Colby could not remember whether he had seen this practice at Mt Owen, and he had only been there for a short time, his evidence quite clearly indicates that the practice of moving the implements while samples were being collected by tradesmen positioned on the machine was relatively common in the industry is an important factor. The consideration that the materialisation of the risk in this case depending upon the carelessness of Mr Kemp does not make the risk any less foreseeable. In McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, the plurality of Mason, Wilson, Brennan and Dawson JJ said (at 311): "In [this] situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence." (citation omitted) The whole statement makes it clear that this is not a degree of perception peculiar to an employer but applies more generally to the reasonable man: See also Nagle v Rottnest Island Authority (1993) 177 CLR 423; [1993] HCA 76 at 430 - 431, Mason CJ, Deane, Dawson and Gaudron JJ.
I regard the risk as not insignificant. After all, the risk of personal injury through interaction of man and machine was expressly recognised by the risk assessment and JSA (see [5] and [6] above). Obviously, when one is considering the possible consequences of interaction of personnel with a Caterpillar D10 bulldozer, the foreseeable consequences could be grave indeed.
The question with which I have had the most difficulty is whether in the circumstances a reasonable person in Mt Owen's position would have taken the precautions propounded by Mr Roberts: s 5B(2) CLA. I confess this is an issued about which I have waxed and waned somewhat. Mr Talintyre argued that the system that Mt Owen had put in place, perhaps as best articulated in the JSA, is reasonable and appropriate both objectively and according to the opinion of the liability experts, Mr Underwood and Professor Hebblewhite. On his argument, the plaintiff was injured because experienced tradesmen departed from the system that they each signed up to comply with immediately prior to the commencement of the task. Two important points underpin this argument. The first is that although the experts thought the system could be improved, they did not regard it as necessary and were of the view that the JSA sufficiently made clear that movement of the equipment applied equally to movement of attached implements. Secondly, given the training, skill and experience of the members of Maintenance Crew B, did reasonable care require no more than leaving it to them to fulfill their respective roles in accordance with the JSA?
One has to bear in mind that the TNT v Christie duty is, like the employer's duty, non-delegable. It has been recognised as being a duty of some stringency. In Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [21] a unanimous High Court said: "An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee". Even so, in the case of experienced workers, it may be reasonable to leave the safe performance of the work to the personnel to whom it is entrusted: O'Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11.
Having given the matter earnest consideration I am persuaded, notwithstanding the opinions of Mr Underwood and Professor Hebblewhite, that the JSA should have spelt out the procedure to be followed if it were necessary to operate the hydraulically driven implements to obtain a hydraulic SOS in an efficient manner in the course of the service. I appreciate that Mr Colby says controls can be adopted, as I have referred to above, for this to occur while the other tradesmen are actually on the machine collecting the samples. He had no difficulty whatsoever on the day. However, the opinion of Mr Wallace, not to mention the opinions of the experts, is implement movement should occur while the other tradesmen are beyond the footprint of the bulldozer. That should be spelt out in the JSA. One cannot assume that the documentation of systems of work or job safety analyses are mere matters of box ticking or compliance. They may have their modern origin in work, health and safety legislation, but the requirements of the law of negligence in the field should be sensible to this reality.
As the plurality pointed out in McLean v Tedman (at 313) accident prevention is undoubtedly one of the modern obligations of an employer. Questions of breach may be determined by reference to the employer's power "to prescribe, warn, command and enforce an obedience to his commands."
I appreciate that I have noted more than once that counsel were content to proceed on the basis that movement of the equipment extends to movement of the implements. However, I am persuaded, as apparently Mr Kemp was, for what it's worth, that more needed to be said to bring home to Maintenance Crew B what had to be done.
If one has regard to the requirements of s 5B(2) CLA, each of the mandatory considerations in the circumstances of this case point toward that precaution being taken. The probability that the harm would occur may not be high, but the likely seriousness of the harm could well be, as I have said, grave. The burden of taking precautions to avoid the risk of harm is slight and in my judgment questions of social utility do not arise.
I am not persuaded that it was negligent not to insist upon employment of the vacuum pump syphoning method which apparently was subsequently recommended at the mine. Mr Talintyre referred me to s 5C(c) CLA, I think, however, that the argument pays too little regard to the significance of the phrase "does not of itself" in that provision. However, there may be many operational reasons why the vacuum pump method is not always appropriate. The fact that tradesmen preferred the valve probe method is not insignificant. The vacuum pump method is not a form of live testing, but there may be reasonable dividends of efficiency in keeping the motor running during the live testing procedures. I am not persuaded by this argument.

[12]

Contributory negligence

I am not persuaded on the balance of probabilities, as I have found already, that Mr Parkes initiated the implement movement. I am certainly not satisfied that he requested the initiation of the blade drop manoeuvre. Sight should not be lost of the fact that Mr Kemp was the person that Mt Owen appointed to be in charge of the procedures. He was the one they had accredited to operate the bulldozer in the limited capacity necessary to carry out the servicing work. It is clear from Mr Colby's evidence that Mr Kemp was exercising that authority. Mr Parkes became aware that the ripper was moving, but I am satisfied that a reasonable person in his position would not have considered themselves to be in any particular danger from that movement and, in any event, it has not been demonstrated to my satisfaction that dismounting this very large machine was necessarily straightforward. So far as I can tell it may have been somewhat cumbersome even for an experienced man. Although Mr Colby said that the blade moved up and down slowly initially, the blade drop was of its nature sudden and unexpected. In circumstances where I have found that Mr Parkes did not request the blade drop manoeuvre and Mr Kemp acted on his own initiative to speed up the process, I am not satisfied that Mr Parkes is contributorily negligent on that score.
Nor am I satisfied that he is contributorily negligent because he sought to obtain the sample standing on the track. As I have emphasised more than once, Mr Colby had to stand on the track to obtain his sample, there was no platform for him. Professor Hebblewhite, in particular, emphasised that as this was a live testing procedure, there was no objection to the tradesmen standing on the track to perform their work provided there was no machine movement, including implement movement. I accept that Mr Parkes could have crouched on the platform and that many, if not most, tradesmen did. But I can also see certain advantages in him seeking to extract the sample in the way he did. Not the least of these would be that the sample port was at about eye-level which would no doubt facilitate the insertion of the probe. I have borne in mind the provisions of the CLA so far as Mt Owen are concerned, including s 5R, but I am not persuaded that the onus of proving contributory negligence has been discharged on the balance of probabilities by either Mt Owen or Titan.

[13]

Who is vicariously liable for the undoubted negligence of Mr Kemp?

I repeat, the question is whether Titan have proved that Mr Kemp had become the employee of Mt Owen pro hac vice? It is important to emphasise and to bear firmly in mind that the question is one of fact: that is to say it is evidence specific and does not depend upon the contractual relations amongst the parties. The concept, where it applies, does not require the novation of the employee's contract of service. The employee at all times remains a party to his or her contract of service with the general employer. He or she does not at law become the employee of the temporary employer.
It's also important to bear in mind, as Titan argue, that the industrial landscape has changed greatly since the concept was first developed. Particularly, with regard to the prevalence, indeed proliferation, of labour hire companies. As Basten JA observed in Hallmark Construction referring to the leading case of Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 ("Mersey Docks") (at [84]): "This case was very different from Mersey Docks, which predated the now common practice of "labour hire" businesses, the primary function of which is to employ staff to work for other businesses, which often have fluctuating needs for labour. There was no evidence of any relationship between ANM and Mr Isaia other than the existence of a contract of employment. Mr Isaia had worked for Copeland for a significant period of time before his employment was transferred to ANM. Nothing changed as to the role he played or the manner in which he undertook his work. So far as the evidence revealed, he remained subject to direction and control by Copeland and not ANM for all practical purposes. There was no relevant sense in which his position in Copeland's workforce was "temporary"; it was as permanent as was his status prior to employment by ANM. Although it may be accepted that ANM had the power to terminate his contract of employment, there was no evidence that if it had done so in circumstances where Copeland wished him to continue to carry out his role, Copeland would not have made other arrangements to ensure that he stayed as part of its workforce." (My emphasis). I observe, of course, that much of what his Honour said, unsurprisingly, turns upon the particular facts of the case, but with respect it also emphasises the adaptability of common law principle to accommodate changing social, and for that matter industrial, conditions.
It is also clear that the factual circumstances in Mersey Docks are quite unlike the circumstances of the present case.
Not forgetting for a moment where the onus of proof lies, there was a tendency on the part of Mt Owen to elide the position of Mr Parkes and Mr Kemp. Mr Colby was not mentioned in this context. But their positions are quite different. TNT v Christie makes quite clear that the pro hac vice principle has no application to an injured worker in the position of Mr Parkes ([66] - [70], Mason P). Similarly, in Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173; [2001] VSC 194 ("Deutz"), a decision upon which Mt Owen placed considerable reliance, Ashley J identified three different categories of case in which the question may arise. Mr Parkes falls into Ashley J's second category and the question of the application of the principles to him, as I have said, have been authoritatively decided by TNT v Christie. Ashley J's third category of negligent damage by the hired worker to the property of the temporary employer does not arise. Only the first of Ashley J's categories is relevant where the hired worker, here Mr Kemp, by his negligence in performing the work causes injury to a third party, here Mr Parkes (Deutz at [95]).
In Mersey Docks the general employer hired to the temporary or host employer was both the crane and the crane operator. It was held that the operator "was never so transferred from the service and control of the appellant board to the service and control of the stevedores as to render the stevedores answerable for the manner in which he carried on his work of driving the crane": Lord McMillan (at p. 13). The other Law Lords made speeches to the same effect: Lord Porter (at p. 17); Lord Simonds (at p. 20) and Lord Uthwatt (at p. 21). As Mr King SC pointed out, Lord Uthwatt stated the test in the following terms (at p. 23): "The proper test is whether or not the hirer had authority to control the manner of the execution of the act in question. Given the existence of that authority, its exercise or non-exercise on the occasion of the doing of the act is irrelevant. The hirer is liable for the wrongful act of the workmen, whether he gave any specific order or not."
Titan point to the following factors: first, as I have accepted Mr Kemp had been on the Mt Owen site for over three years and was "FTE"; secondly, Mt Owen exercised its power and authority over the way Mr Kemp performed the work by requiring him to be trained in Mt Owen's requirements for the performance of the task, to comply with the JSA, by conferring Mt Owen's authority on him by appointing him as the person in charge and only Mr Wallace actually supervised the performance of the task on the day. Thirdly, Mr Wallace had the authority to intervene if he did not approve of the way in which the work was being done. Fourthly, while the work was being performed there was no difference between workers hired from Titan and direct employees of Mt Owen. Fifthly, after the event, Mt Owen proscribed the valve probe method and prescribed the vacuum pump method which was fundamental to how the work was done.
Although it could not be said that Titan was a bare legal shell of an employer, like the general employer in Hallmark Construction, there is no evidence that Titan retained any right to control how Mr Kemp performed the particular tasks allocated to him at Mt Owen, including the different aspects of the 1000 hour service.
Titan also argued that the consideration that Mr Kemp was a skilled tradesman was not determinative. Reference was made to the judgment of Dixon CJ in Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; [1955] HCA 73 at 571: "The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters. Even if [the circus owner] could not interfere in the actual technique of the acrobats and in the character of the act, no reason appears why the appellant should not be subject to his directions in all other respects".
Titan also argued that the terms and conditions of the supply of labour were not determinative. A question was raised about whether they were incorporated into the contract for the supply of the labour of Mr Kemp. Even if they were, it did not derogate from the practical reality that Mt Owen had the sole power and authority about how Mr Kemp was to perform the live testing in question.
Mt Owen relied in particular upon the relevant factors identified in Deutz by Ashley J at [109] - [113]. I will set them out for convenience: "What has been decided, I think, is this: first, a general employer which seeks to shift vicarious responsibility for the negligence of its servant onto another bears a heavy onus, which can only be discharged in quite exceptional circumstances. Second, transfer will less readily be inferred where the general employer provides man and machine; and probably also where the general employer provides a skilled worker. Third, transfer may be discerned where the hired worker, despite a machine being also hired out, is bound to work the machine "according to the orders and under the entire and absolute control" of the hirer. Fourth, the contract made between general and temporary employers, so-called, cannot determine whether there has been change of masters for purposes now under discussion. Fifth, circumstances in which transfer may be discerned are the following: ♦ Where the hirer can direct not only what the workman is to do, but how he is to do it. ♦ Where the hirer "is entitled to tell the employee the way in which he is to do the work". ♦Where the complete dominion and custody over the servant has passed from the one to the other. ♦ Where, by an agreement "the employer vests in the third party complete, or substantially complete, control of the employee, so that he is not only entitled to direct the employee what he is to do, but how he is to do it". ♦ Where it can be said that the hirer has such authority to control the manner in which the worker does his work that it can be said that the worker is serving the hirer, not merely serving the interests of the hirer. ♦ Where it cannot be said that the reason that the worker subjected himself to control of the so-called temporary employer as to what he did and how he did it was that his general employer told him to do so. ♦ Where it can be said that the servant was transferred, not merely the use and benefit of his work"".
Mt Owen laid much emphasis upon the fact that Mr Kemp was a skilled employee, whose qualifications and competency had been certified by Titan to Mt Owen and upon which certification Mt Owen reasonably relied. I understood the inference Mt Owen sought was that from this there was no transference of the power to control not only the work, but the manner in which the work is performed. It was also submitted that the detailed terms and conditions, while not determinative, were contra-indicative of the idea that there had been the relevant transference of authority. For example, reliance was placed upon the obligation of Titan of ensuring that its employees comply with, inter alia, rules and guidelines, directions and orders given by Mt Owen. That is to say, it was by Titan's authority that Mr Kemp must comply with Mt Owen's directions, not authority which had been transferred to Mt Owen. Reference was also made to an indemnity provision, the relevance of which I must say is lost on me given there is no cross-claim invoking such a matter.
It was also submitted that Titan had retained substantial control of its employees working at Mt Owen, including by inference, Mr Kemp. A number of factors were relied upon. They included: Titan carried out its own induction when the employee started; it issued letters of competency, as I have said when workers were first hired; and Titan employees were subject to policies and procedures of Titan in relation to risk management, safety management and injury reporting which were said to have been enforced by Titan. Eighteen examples were given of those policies, which I need not outline in these reasons. It was accepted that Titan's communication of the policies to the hired workers "was entirely inadequate", but it was submitted that their existence demonstrated the retention of control by Titan.
Titan had a presence on Mt Owen's site, its supervisors frequently attended and consulted with employees in relation to matters of concern arising out of the performance of work at Mt Owen. It was pointed out that Titan retained control of conditions of employment. It allocated employees to customer work sites at its own discretion and paid all wages and entitlements. The consideration that Titan's employees were supervised by employees of Mt Owen was irrelevant. Supervision is insufficient to guard against the risk of casual negligence: Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190 at [45] - [61].

[14]

Decision about pro hac vice

I accept the submission of Titan that there is no "exceptional circumstances" test applicable to the question whether the employee of one has been transferred to another so as to make the other vicariously liable for the consequences of the negligence of the employee. It may be as some of the cases have pointed out that the necessary conditions to justify a favourable finding at the suit of the general employer are not easily satisfied by probative evidence. But that is essentially a practical matter involving questions of fact, rather than law. I appreciate that the exceptional circumstances expression in this context can be traced to the speech of Viscount Simon in Mersey Docks (p. 10) and that the expression was picked up by Wilson J in Oceanic Crest Shipping (at 646). But the question simply remains whether the necessary facts have been established on the balance of probabilities.
Having said that, I accept that the following statement of Leeming JA in Day perhaps counsels restraint (Day at [33]): "[as there is a] well-established basis of vicarious liability, namely, that of employer for the tortious conduct of its employee in the course of the employee's employment, there is no sound basis for imputing vicarious liability to another person, who did not even have a contractual relationship with the wrongdoer." I remind myself that statement, however, was made in the context of his Honour's explanation of why the common law of Australia rejects a concept of dual vicarious liability.
In Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 (at 443), Lord Denning MR said of the pro hac vice principle: "That conception was a very useful device to put liability on the shoulders of the one who should properly bear it, but it does not affect the contract of service itself. No contract of service can be transferred from one employer to another without the servant's consent: and this consent is not to be raised by operation of law, but only by the real consent in fact of the man expressed or implied". (citation omitted) Lord Denning went on to observe that transfers rarely take place when an operator is lent with a machine or a skilled worker is lent so as to exercise the skill for the temporary employer. His Lordship was generally speaking inclined to the view that the relevant transfer can "take place in the case when an unskilled man is lent to help with labouring work": at 444.
Once again, these comments of his Lordship are really factual in nature and I accept the argument that the principle has to move with the times. There is a difference between the provision of a skilled or expert worker to a host employer in circumstances where the host employer does not generally employ persons with such qualifications, on the one hand, and the supply of such skilled persons to a host employer to make up some shortfall temporary or otherwise in the host's skilled workforce. As Basten JA observed in Hallmark Construction the older cases pre-date modern industrial practices and I repeat the common law is flexible enough to adapt to changing conditions.
As Ashley J pointed out in Deutz (at [107]), given the nature of the operation of the principle (as a device) generally the only contract of service is that between the hired worker and the general employer. I also emphasise as Ashley J did, that the contract between the general and host employers is not determinative. For this reason, it seems to me to be unnecessary to construe that contract in relation to who has the legal power to control the worker. One is concerned with the practical reality of the factual circumstances created by the hire of the worker in question. It's obvious in the circumstances of the present case, by reference to Exhibit B, that Mr Kemp was in a different position viz a viz Mt Owen from both Mr Parkes and Mr Colby. It is evident that one cannot deal with the employees hired from Titan as a "job lot". If one looks at the circumstances prevailing at the time of Mr Parkes' injury, Mr Kemp was for all practical purposes absorbed into Mt Owen's workforce. He had been there for three years and was treated by Mt Owen, if I may put it this way, as virtually their own employee. The risk assessment and the JSA in detail controlled not only the allocation of the task, but the performance of the work involved in the 1000 hour service including the collection of SOS. That the JSA was not sufficiently explicit on that matter, as I have found, for the purpose of my findings on negligence, does not alter the fact that it was intended to cover that aspect of the work.
Mt Owen was an employer of skilled workers. There may be some persons engaged in open cut coal mining who might yet fit into Lord Denning's category of "an unskilled man … lent to help with the labouring work", but the evidence in this case does not disclose such a category of employee. By and large, coal mining work depends upon a highly skilled workforce operating large, dangerous and very expensive equipment. Were it suggested to Mt Owen that they did not acquire the capacity to direct not only what labour hire employees do, but how they are to do it in its mine operating its equipment, Mt Owen, I am sure, would very strongly disagree.
From his evidence, Mr Wallace in his capacity as a Mt Owen supervisor obviously was of the view that he was "entitled to tell the employee the way in which he is to do the work": Mersey Docks at 17.
It's obvious that each of Ashley J's seven bullet points (Deutz at [113]), really embraces a different way of stating the same proposition.
I fully accept that the various occupational health and safety policies instituted and maintained by Titan are not mere matters of compliance by a corporation working in the coal mining industry, which is a heavily regulated industry under Work Health and Safety Legislation. I accept that the policies it has adopted and published are intended to be applied. But Mt Owen properly concedes that it has not shown on the evidence that the existence of these policies has a practical impact upon either the performance of the work by Mr Kemp or the capacity of Mt Owen to control it. Although it is not necessary, as Titan argue, that it proves that Mt Owen actually exercised the relevant control to make good its case, I am satisfied for the reasons I have given that it has done so.
I am satisfied on the balance of probabilities that Mr Kemp, at all material times, was the employee of Mt Owen pro hac vice. I am saying nothing of the status of Mr Parkes, Mr Colby or other workers hired from Titan to perform various tasks at Mt Owen. Each case, and each worker, must be looked at individually and all the circumstances of the particular hire must be brought to account.

[16]

Quantum

As I have pointed, out separate damages' regimes apply and as both defendants have been found liable, it will be necessary for me to assess damages in accordance with each regime. However, the substantive difference between the regimes applicable in Mr Parkes' case is to be found in the respective provisions made for non-economic loss, which I will refer to at the relevant time.
Mr Parkes was born in the second half of 1993. He was aged 23 years at the date of injury and is now 28 years old. He is unmarried but has an ongoing apparently permanent relationship with his female partner.
Mr Parkes was born in Moree but grew up in Muswellbrook. He left high school in 2010 at the end of year 11 to take up an apprenticeship in heavy diesel and plant mechanics with BHP at the Mt Arthur Coal Mine. His technical studies were completed through Kurri Kurri TAFE.
Not long into his apprenticeship he suffered a serious fracture of his right leg in a motorcycle accident, requiring right tibial fixation. To his credit, he was able to return to light duties in October 2011. He was able to resume and complete his apprenticeship and return to playing rugby league football. In their joint report, Drs Bodel, Gliksman, Rowe and Halliday expressed the view that the previous right leg injury "did not cause him issues prior to (the) accident on 29 July 2017" (Exhibit JCB, tab 72, p. 719). From this I infer that for all practical purposes, Mr Parkes made a good recovery from the previous injury and that it is not a factor affecting his prognosis.
Mr Parkes completed his apprenticeship in early 2015 when he was awarded a Certificate III in Automotive Mechanical Technology. He did not progress to a permanent job as tradesman at Mt Arthur and he was unemployed for some months. In about September 2015 he obtained bar work and commenced a Certificate III in hospitality. The opportunity to return to his trade presented itself in December 2016 and he underwent an employee induction assessment with Titan preparatory to commencing work. He commenced employment with Titan on 9 January 2017 and in that occupation obtained other qualifications, including a licence to operate a slewing mobile crane and a Safe Work High Risk Work licence. The first of these was obtained on 5 July 2017 and the second on 20 July 2017.
There was an issue in about May 2017 with his employment when he failed to return from leave when required. He put this down to a misunderstanding, but it did affect his employment in as much as his reinstatement was subject to him being prepared to perform work at a lesser qualification than his diesel mechanic qualification, if required. It was his intention to remain in the mining industry, working in his trade and he had ambitions to obtain full time work if it became available to him as a direct employee of a mining company in the upper Hunter region.
I am satisfied that at the time of his injury on 29 July 2017 he was fully fit for work for all aspects of the heavy work required of a diesel mechanic. I accept that from time to time while an apprentice he experienced back pain due to the heavy work involved and on one occasion after a football match. It does not seem to have been a particularly significant history and there is no suggestion of it interfering with his capacity to work with Titan.
Although I think he was fully fit for work as at 29 July 2017, it is to be noted that the back issues I have referred to related to an injury in 2014 which seemed to have led to him finishing his apprenticeship early, and I assume without penalty (156.46T).

[18]

Summary of the expert medical evidence

I have already referred to the joint orthopaedic report (Exhibit JCB, tab 72) and I accept that the plaintiff suffers from a Complex Regional Pain Syndrome in the right leg as a result of the injuries he suffered at work on 29 July 2017. Although the experts agreed that the plaintiff had received "standard conservative care" for his injury they did record that he "has been resistant to more involved pain management techniques". He declined the offer of a spinal chord stimulator for pain relief. Given these matters, the experts were of the view, "there is no other additional treatment that is likely to assist with further recovery".
All of the experts agreed that Mr Parkes is permanently incapacitated for his pre-injury occupation of a diesel mechanic. They did not regard his prognosis as affected by any other injury or condition. The experts also agreed that Mr Parkes would need long term domestic assistance to be assessed by occupational therapists. The prognosis is poor and "the condition is stationary and stable and will continue as it is in the long term".
The joint report of the psychiatrists, Dr Parmegiani, Dr Rice and Dr Samuell is, as I have said, Exhibit JCB Tab 73. These experts gave oral testimony before me. I have already referred to the disagreement between them about the appropriate diagnosis, but all agree that he has a recognised psychiatric condition. The psychiatrists were unable to agree about treatment requirements mainly because they had not re-assessed Mr Parkes in recent times. Dr Parmegiani considered that he may need inpatient treatment for medically supervised detoxification having regard to evidence that he was abusing recreational drugs.
Dr Parmegiani considered that the PTSD he diagnosed would preclude him from returning to work as a heavy diesel and plant mechanic. He considered he needed ongoing treatment for that condition. Dr Rice was of the view that the problem was a lack of motivation. Dr Samuell was of a similar view and considered that the question of fitness for work needs to be determined by his "physical state".
Dr Parmegiani thought he may struggle to obtain any gainful employment. Drs Rice and Samuell adhered to the view that absent current information, they were unable to express an opinion.
None of the psychiatrists considered that his psychiatric condition affected his capacity to perform the normal activities of daily life. No useful opinion was expressed about prognosis, I regret to say.
A significant issue raised during the trial was whether the applicant had suffered an episode of recreational drug induced psychosis on the Gold Coast in March 2019. Dr Parmegiani was of the view that there was no evidence of recreational drug use and that the symptoms suffered by Mr Parkes at the time settled very quickly and the diagnosis of a drug induced psychosis was not supported. He understood that the correct diagnosis was "a brief reactive psychosis" related to stress connected with the case and especially approaching medical appointments (208.20T).
Dr Samuell was not prepared to resile from the position that there had been acute psychotic disorder in the context of suspected illicit drug use. Even though he was prepared to accept that the drug screening in fact proved to be negative (209.5T). Dr Parmegiani reiterated that the documents from Queensland were "black and white" and there was no mention of drugs at the point of discharge (209.24T). Dr Rice simply said he was not in a position to comment. It seems to me that Dr Parmegiani's evidence in this regard should be preferred and that the incident which occurred in March 2019 was an acute reactive psychosis not related to recreational drug use, at least on the balance of probabilities.
It was made clear that although Drs Samuell and Rice adhered to their view that the proper diagnosis was adjustment disorder because Mr Parkes did not fulfill all of the diagnostic criteria for PTSD, he did suffer post traumatic anxiety symptoms as part of his symptom complex covered by the adjustment disorder diagnosis (210.20T).
In relation to the PTSD diagnosis, Dr Parmegiani agreed that, whatever the diagnosis, it depends upon acceptance of Mr Parkes' subjective complaints (213.7T).
Dr Parmegiani accepted that the history given by Mr Parkes on attending the Gold Coast Hospital clearly involved using marijuana some weeks earlier and consuming ecstasy some days before his presentation. And his presentation was consistent with psychosis (213.5 - .45T). But he was not prepared to accept that the correct final diagnosis was a drug induced psychosis (214.40T).
The psychiatrists agreed that if for significant periods Mr Parkes was drinking up to 10 standard drinks of alcohol a day, he would be doing himself considerable harm (216.35 - .45T). Dr Parmegiani was prepared to accept that with all psychiatric diagnoses there is doubt (217.30T).
Dr Parmegiani also made clear that the diagnostic requirement for PTSD of Criterion A to be found in DSM-4 had been superseded by DSM-5 and was no longer necessary.
Dr Rice did not think it too late for a multi-disciplinary pain management approach (220.15 - .25T). Even at the comparatively late stage of the hearing it may have improved his quality of life and perhaps his employment prospects. Dr Samuells agreed (221.20T), as did Dr Parmegiani (221.30T).
I accept Dr Parmegiani's evidence that Criterion A is no longer a diagnostic condition for the diagnosis of PTSD. On the other hand, it does seem to me that after the occurrence of the incident on 29 July 2017, Mr Parkes was able to function in a normal manner, albeit with increasing pain. There is nothing about the incident in particular which would suggest the infliction of psychological, as opposed to physical trauma. For this reason, I am of the view that the adjustment disorder, albeit with PTSD like symptoms, proffered by Dr Rice and Dr Samuell fits in more with the known facts and I find that that is the nature of the psychiatric injury.
I agree with Dr Parmegiani's view that despite the history of some recent recreational drug use prior to his presentation at the Gold Coast Hospital, the appropriate diagnosis in respect of that episode is an acute reactive psychosis rather than a drug induced psychosis. Mr Parkes does not appear to suffer from ongoing psychotic illness and the episode to my mind has very little impact upon his damages, if at all.
I accept that there has been a lack of motivation on the part of Mr Parkes both to engage with and undertake available medical treatment, such as a multi-disciplinary pain management program, which I find would have improved his prospects. This lack of motivation extends to his attitude to finding work. Accepting, as I do, the opinion of the orthopaedic and occupational specialists and that Mr Parkes suffers from an injury related psychiatric condition, it remains that he is strangely passive about finding work at all. This is somewhat surprising given that after his motorcycle accident, he demonstrated the motivation to return to work and social activities following what seemed to be a quite severe fracture of his right leg. It may be that part of the explanation is as suggested by Dr Rice the rigidity of his pre-existing personality.
I accept that Mr Parkes has failed to take all reasonable steps to pursue medical treatment and to find work in the past. Had he undertaken multi-disciplinary pain management treatment, and actively sought to retrain, he may well have put himself in a position where by now his condition would have significantly improved and his prospects of employment significantly brightened. It is very difficult to be precise about these matters as by their nature they are hypothetical and accordingly better accommodated in the assessment of damages by reference to the principles established in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.
I turn then to the assessment of the various heads of damage claimed.

[19]

Damages for non-economic loss

I have had regard to the issues as presented in the joint schedule of damages. Mr Parkes suggests that non-economic loss should be assessed at the rate of 50 percent of a most extreme case. The defendants jointly contend that the assessment should not exceed 27 percent. Under the CLA regime, damages for non-economic loss are governed by s 16 and under WCA by s 151G. I am satisfied, given the way that the parties have presented the issue that Mr Parkes' entitlements exceed the relevant statutory thresholds in each case.
I have borne in mind what I have said about his lack of motivation and the failure to take steps that he ought to have taken to improve his situation. These considerations must have an impact upon my assessment. At the same time, he was a very young man when he suffered what objectively, according to the joint report of the orthopaedic and occupational specialists, is a very significant injury. Added to that, is, of course, the effect of the psychiatric diagnosis which is ongoing. Notwithstanding the other views of Dr Rice and Dr Samuell, they adhere to the view that he has an adjustment disorder with post-traumatic anxiety symptoms. I doubt that the acute psychotic episode of March 2019 adds much at all to the overall assessment of non-economic loss. However, I am not satisfied that it is the type of illegal conduct which is caught by the principle discussed in State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500. I have borne in mind the cross-examination that elicited evidence from Mr Parkes about his recreation of playing poker. Whatever else might be said about it, I accept that it does show or demonstrate a capacity to concentrate and for what it's worth to engage in what may be an absorbing activity for relatively prolonged periods of time.
Given his youth and the great uncertainty about the prognosis of his physical and psychiatric injuries, it is inevitable that I should treat them as effectively permanent. I am of the view that the correct assessment under both CLA and WCA is 40 percent of a most extreme case.
Under s 16 CLA, the maximum amount is $693,500. My 40 percent assessment entitles Mr Parkes to damages in the sum of $277,400.
Under s 151G WCA the maximum amount is fixed at the date of the accident, being 29 July 2017. The figure is $425,350. Mr Parkes is entitled under the legislation to $170,140.

[20]

Past economic loss

As at the date of the accident, the plaintiff had been employed as a casual by Titan since 9 January 2017. He had re-entered his trade with the intention of obtaining full time employment in the mining industry in the upper Hunter Valley. In my view, there was a likelihood that he would have achieved that aim but certainly there were no guarantees in that regard. As I have said, he had had some issues in the past. He had ceased working in the industry due to an earlier back injury from which I find he recovered. But he had the disciplinary issue about leave in the early part of 2017. Although the evidence suggested that employment by labour hire firms was a pathway into permanent employment as a direct employee of a coal mine, progress along the path was not inevitable. Nor would it necessarily occur at the same rate of progress for all workers.
There was evidence that a diesel mechanic working full time as a direct employee of a mining company could earn a total employment package including superannuation of as much as $165,000 before tax, subject to the achievement of productivity targets by the whole shift.
It seems to me that there is some prospect that Mr Parkes could have achieved his aim by now, but the imponderables are such that it is incapable of precise calculation and it is necessary to take, as I have said, an approach consistent with the assessment of hypothetical questions for damages purposes in personal injury claims established by Malec v JC Hutton.
The plaintiff's claim is that, had he not been injured, he would have been earning not less than, $2,500 gross per week.
There is a dispute about the figures. It appears to me not unreasonable to work on the basis of the figure proposed by the plaintiff, subject to some reduction for the probabilities. It is certainly a figure which is somewhat more modest than the $165,000 to which I have referred.
Notwithstanding what I've said about the plaintiff's failure to mitigate, I am not satisfied, given the pessimistic prognosis, that with improved motivation he would have found and secured suitable full-time work by now. Nor am I satisfied that the opinions expressed in the report of Sebastian Bass of 19 April 2020 (Exhibit JCB, Tab 70) as to Mr Parkes' ability to perform and find work in one or other of the various occupations therein listed is accurate. I certainly accept that on the basis of Mr Bass's psychological testing that Mr Parkes is employable and would be fit for sedentary work, perhaps on a full time basis, at least in the future. A small allowance should be made for the possibility that he could have found other work in the past.
I think the proper approach is to adopt the figure propounded by Mr Parkes of $1,800 net per week, but to reduce it by 25 percent to take account of the matters affecting past probabilities identified by me in accordance with the principle referred in Malec v JC Hutton. The figure is $1,350. The total period from 29 July 2017 to 8 July 2022 is 257 weeks. The total is $346,950. From this amount it is necessary to deduct the amount earned while performing light duties for Titan between 30 July 2017 and 28 June 2018 of $7,425, leaving a subtotal of $339,525.

Parkes v Mt Owen Pty Ltd & Anor

At a glance

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Judgment (30 paragraphs)

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Legislation Cited (7)

Cases Cited (24)

Cited By (1)