Ward v Endeavour Coal Pty Limited [2026] NSWSC 557 | Case summary | Zoe

NSWNSWSC

Ward v Endeavour Coal Pty Limited

[2026] NSWSC 557

Supreme Court of NSW|2026-05-22|Before: Cavanagh J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-05-22

Before

Cavanagh J

Catchwords

NEGLIGENCE – workplace accident in coal mine – plaintiff travelling in front passenger seat of specialised mining vehicle – driver of vehicle a labour hire worker – plaintiff an employee of the mine operator – vicarious liability – pro hac vice employment – contributory negligence – assessment of damages – where plaintiff’s earning capacity disputed – assessment of residual earning capacity – assessment of claims for care – chance of future surgery

Source

Original judgment source is linked above.

Catchwords

NEGLIGENCE – workplace accident in coal mine – plaintiff travelling in front passenger seat of specialised mining vehicle – driver of vehicle a labour hire worker – plaintiff an employee of the mine operator – vicarious liability – pro hac vice employment – contributory negligence – assessment of damages – where plaintiff’s earning capacity disputed – assessment of residual earning capacity – assessment of claims for care – chance of future surgery

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Ward v Endeavour Coal Pty Limited [2026] NSWSC 557

Hearing dates: 30 – 31 March, 1 – 2, 7 April 2026

Decision date: 22 May 2026

Jurisdiction: Common Law

Before: Cavanagh J

Decision: (1) Judgment for the plaintiff against the second defendant in the sum of $3,588,174.17.
(2) Judgment for the third defendant against the plaintiff.
(3) The first cross-claim dismissed.
(4) The second defendant is to pay the plaintiff’s costs.
(5) The plaintiff is to pay the third defendant’s cost.

Catchwords: NEGLIGENCE – workplace accident in coal mine – plaintiff travelling in front passenger seat of specialised mining vehicle – driver of vehicle a labour hire worker – plaintiff an employee of the mine operator – vicarious liability – pro hac vice employment – contributory negligence – assessment of damages – where plaintiff’s earning capacity disputed – assessment of residual earning capacity – assessment of claims for care – chance of future surgery

HIS HONOUR: The plaintiff sustained a severe injury to his left arm in an accident at the Appin Colliery (“the Mine”) on 20 May 2021. He commenced proceedings against three defendants, but by the first day of the hearing, he had determined not to proceed with his case against the first defendant. The plaintiff now seeks damages from two defendants, being:
The second defendant, Illawarra Coal Holdings Pty Limited (“Illawarra Coal”), which admits that it was the plaintiff’s employer, as well as having the care, control and management of the Mine at the time of the accident; and
The third defendant, WorkPac Mining Pty Limited (“WorkPac”), a labour hire company which employed the driver of a Specialised Mining Vehicle (“SMV”) known as a Driftrunner, in which the plaintiff was travelling underground when he sustained injury.
Whilst the fact of his injury is not in dispute, the precise circumstances or mechanics of the accident are. The plaintiff maintains that, whilst he was working as a fitter/mechanical tradesperson in the Mine and travelling as a passenger in the SMV being driven by a fellow worker, Adam Carroll, his left elbow came in contact with a piece of equipment, known as a salter, as the vehicle drove past the salter, in what is described as a “cut-through”. A cut-through is a small road which provides access between major roads or thoroughfares underground.
At the time of the accident, the plaintiff and Mr Carroll were assigned to undertake repairs to another piece of machinery, a pump, known as a ‘fish tank’, which was situated at the end of the cut-through. Mr Carroll turned left off a main thoroughfare into the cut-through and attempted to drive past the salter which had been left in the cut-through, when a part of the plaintiff’s elbow struck the edge or external flange of the salter. The plaintiff says that the accident occurred when Mr Carroll drove so close to the edge of the salter that the left-hand edge of the vehicle collided with the flange of the salter. It was at this point that his elbow was jammed between the SMV and the salter.
Mr Carroll, who was called as a witness, acknowledges that the plaintiff’s elbow must have connected with the edge of the salter as he drove past, but says that this was because the plaintiff must have had his arm hanging or protruding out of the cabin of the SMV, such that it came in contact with the flange of the salter as Mr Carroll drove past.
Mr Carroll acknowledges that, because of the presence of the salter, it was a tight squeeze between the far edge of the cut-though and the salter but says that he did not impact or connect with the edge of the salter as he drove past it. However, he says that there was impact between the edge of the SMV and the salter when, after he had stopped, realising the extent of the plaintiff’s injury, he attempted to reverse out of the cut-through.
This is the essential factual issue in the case. That is, did the left-hand side of the SMV come into contact with the metal edge of the salter as Mr Carroll drove forwards, past the salter, or did the impact with the salter only occur after the plaintiff sustained the injury. There is no dispute that the plaintiff’s elbow came in contact with the salter as the SMV was first driven past the slater.
The outcome of that issue does not necessarily determine whether the defendants might be liable, but the impact with the edge of the salter as Mr Carroll drove past it would tend to suggest that he must have been driving too close to the salter.
In addition to the central factual issue, there remain a number of other issues for determination, including:
Was the plaintiff’s injury caused by a failure to take care on the part of Mr Carroll?
If so, and having regard to the interplay between vicarious liability and the existence of a non-delegable duty of care, which of the defendants, that is, either or both, are responsible for the conduct of Mr Carroll?
Were either of the defendants otherwise negligent, that is, irrespective of any casual act of negligence on the part of Mr Carroll?
Was the plaintiff guilty of contributory negligence?
Assuming both defendants may be liable, how should apportionment be assessed?
What damages is the plaintiff entitled to, particularly having regard to the disputed issues in respect of loss of earning capacity and care?
I will endeavour to structure this judgment to deal with the issues for determination as I have set out.
The matter proceeded over five days. Robert Sheldon SC appeared with Elizabeth Welsh for the plaintiff. Stephen Flett appeared with Haren Pararajasingham for the second defendant and Hilbert Chiu SC appeared with Louise Moussa for the third defendant. At the end of the hearing, all parties provided helpful oral and written submissions, as well as schedules of damages.

All parties relied on a number of lay witnesses, some of whom were not required for cross-examination. The plaintiff tendered:
The plaintiff’s evidentiary statements, dated 25 January 2024, 4 February 2025, 8 December 2025, and 5 February 2026, respectively;
Evidentiary statements of the plaintiff’s wife, Kristina Ward, dated 29 January 2024 and 5 February 2026, respectively;
The statement of the plaintiff’s cousin, Tod Ward, dated 23 September 2025;
The statement of the plaintiff’s brother, Michael Ward, dated 6 February 2026;
The statement of a friend and former colleague of the plaintiff, Douglas MacLeod, dated 6 February 2026; and
The statement of a friend and co-worker of the plaintiff, Matthew Pearson, dated 9 February 2026.
Only the plaintiff, his wife and Mr Pearson were required for cross-examination. In addition, the plaintiff relied on an expert report on liability from Dr Timothy White, dated 15 August 2024, as well as the joint report produced by Dr White and the defendants’ expert, Professor Bruce Hebblewhite, dated 10 December 2025.
The defendants relied on a number of statements, as follows:
Jason Economidis, dated 6 May 2025, prepared on behalf of the first defendant;
Justin Adams, dated 28 May 2025, prepared on behalf of the second defendant and who gave oral evidence;
Peter Quinn, dated 20 March 2025, prepared on behalf of the second defendant and who was not required for cross-examination;
Adam Carroll, the driver of the SMV, dated 8 March 2026, prepared on behalf of the third defendant and who gave oral evidence; and
Bradley Neurath, dated 23 May 2025, prepared on behalf of the third defendant and who was not required for cross-examination.
Only Mr Adams and Mr Carroll were required for cross-examination. In addition, the parties relied on extensive documentary material, including contemporaneous investigative reports, earlier statements and transcript of interviews.
I will come to the damages evidence later in this judgment.
It is not necessary that I merely recite or quote from the extensive lay evidence in any detail. Much of it is uncontroversial. I will refer to it when considering the issues for determination. It is only necessary to say that in terms of the central factual issue, the evidence of both the plaintiff and Mr Carroll was important. Whilst there were challenges to their evidence, I did not form the view that either witness was deliberately giving false evidence or was simply lying.
Both men had differing recollections as to the precise events which unfolded at the time the plaintiff sustained injury. Both maintain that their recollections were accurate and were not prepared to make any significant adjustment to their evidentiary statements during cross-examination, albeit my impression was that both accepted that their recollection could have been affected by the trauma of the day.
Having said that, there is good reason to be somewhat cautious about accepting everything the plaintiff and Mr Carroll said. Firstly, cross-examination of the plaintiff was forensically successful, in that the cross-examiner was able to elicit concessions from the plaintiff that he was unable to say really precisely where his arm was at the time that it was struck and what he had been doing immediately before his arm was struck. It became clear that the version of the events that the plaintiff was maintaining only came to light sometime after the accident.
Further, there were some aspects of his evidence on damages which were a little surprising. In particular, it is difficult to understand why he did not inform those health professionals or experts that he saw immediately before and after going on his long sailing trip that he was in fact undertaking such a trip.
It is only necessary to say that I found the plaintiff to be a generally credible witness, but that does not mean I would necessarily accept every word of his testimony.
Similarly, I accept that Mr Carroll was doing his best to provide a version of events based on his own belief. I do not think that he was simply fabricating a story for the purposes of exculpating himself. Having said that, he was clearly concerned that he was being blamed for the accident, and his statement that he knew how many days it was, precisely, since the accident, rather gives a flavour of the trauma the accident caused to him and his general feelings about the process. He appeared to be agitated in the witness box and was plainly defensive in terms of suggestions made about his conduct. To a certain extent, that is all understandable and may reflect his own perception that he is being wrongly blamed for the accident.
Aspects of Mr Carroll’s evidence do not sit comfortably with some of the contemporaneous documents and his version of events is inconsistent with the expert analysis.

The plaintiff is currently 52 years of age. He is married and has two children. He lives in Shellharbour in New South Wales. After finishing school, he obtained a traineeship with BHP Steel at Port Kembla as a mechanical engineer. He obtained an associate diploma in mechanical engineering. He was originally employed by BHP Steel for a period of 11 years, before undertaking similar-type employment for different companies. On 25 June 2011, he recommenced employment with BHP Billiton at the Mine as a mechanical tradesperson. As he says, he undertook a four-day induction and ongoing training in relation to the operation of plant and equipment within the Mine. The system in place at the Mine required those that were inexperienced, that is, in their first 12 months at the Mine, to wear a white safety hat. After that period, workers progressed to wearing a red safety hat.
At the time of the accident, the plaintiff’s role was to maintain equipment underground, including conveyer belts, mining machinery and the pumping system for the Mine. He would also attend to breakdowns. He travelled around the underground roads in an SMV. Sometimes he would drive and sometimes he would be a passenger.
Immediately prior to the accident, the plaintiff was travelling as a front seat passenger in an SMV being driven by Mr Carroll. He had only known Mr Carroll for a few weeks, but had travelled with him in an SMV on a regular basis prior to the day of the accident.
At the time of the accident, the plaintiff and Mr Carroll were required to attend and undertake work on machinery which was situated at one end of a cut-through known as “20 cut-through”.
They were travelling along the main road known as “156 travel road”. The plaintiff maintained in his evidentiary statement that he was sitting in the front passenger seat resting on his right elbow and leaning on his backpack, which he had placed on the centre console. He was holding a two-way radio to his ear as it was difficult to hear the radio due to the noise in the Mine. He saw Mr Carroll turn left from 156 travel road into 20 cut-through. He says that at that time, he was sitting upright in his seat and not listening to the radio. However, his view in front of him was limited, because there was a radiator header tank mounted on the bonnet of the SMV in front of the passenger seat.
The plaintiff says that shortly after turning into the cut-through, Mr Carroll drove the SMV in such a way as to cause the left-hand side of the SMV to collide with or impact with a metal frame forming part of a salter which had been left in the cut-through. On the last occasion that the plaintiff had travelled through the cut-through, the salter was not there. It had been positioned in the cut-through at some time between before the entry into the cut-through on the day of the accident.
The plaintiff says that as the impact with the salter occurred (that is, metal on metal), his left elbow became caught between the door frame and the salter. He screamed out in pain, but the vehicle did not stop immediately. It kept moving forward and his left arm was crushed. He says that the accident happened in a second.
The plaintiff says that it was not necessary for Mr Carroll to drive through the cut-through at that time. He could have stopped before the salter and they would only have had to walk 20m or so to where they were going. They only required their backpacks.
The plaintiff also says that after he screamed, Mr Carroll did stop the SMV, but it was not possible to provide him with any assistance from his side of the vehicle. Mr Carroll tried to get the first aid kit, which was positioned on the left-hand side of the SMV, but the handle of the first aid kit compartment was torn off as a result of the impact. The plaintiff says that he felt the best course was for him to hold his arm to try and stem the bleeding and give Mr Carroll instructions as to how to drive out of the Mine.
They did so, but it took 30 minutes before they reached the pit bottom, with a further 15 minute train ride to the surface. An ambulance was called. The plaintiff says that he remembered hallucinating in the ambulance.
It is apparent from the photographs taken at the time (as well as all of the medical reports) that the plaintiff sustained a very severe injury to his left elbow. It was shattered, crushed and degloved. It was agreed during the hearing that, having regard to the contemporaneous photos of his left arm, there was no injury by the way of bruising, scratches or cutting to the forearm below the area of the left elbow.
This is relevant, because one of the factual questions in issue relates to the position of the plaintiff’s left arm at the point of impact. That is, was the plaintiff’s left arm hanging out of the cabin or was his elbow merely protruding from the cabin, even very slightly as he rested his arm on the left-hand door.
It was not suggested by any party that the evidence supported a finding that the plaintiff was hanging the whole of his left arm out of the cabin at the time of impact.
Whilst the plaintiff’s evidentiary statement seems clear enough, cross-examination and a review and analysis of the contemporaneous material raise some doubt as to the accuracy of some parts of his evidence.
Firstly, when asked where his elbow was immediately before the collision, the plaintiff suggested that it must have been close to the windowsill of the cab of the SMV, but accepted that he did not know with certainty where his elbow was immediately before the impact. He agreed he was doing his best to recall the events of the afternoon but also agreed that it was a traumatic injury. He accepted that, because of his injury, he was not in a position to discuss what happened with anyone on that day, but that came later, once he had had a chance to reflect.
It was put to the plaintiff that he had said different things to certain medical experts and others. For example, it was suggested that he said to the occupational therapist who prepared a report that when he tried to sit up, he pushed his elbow further out to reposition himself, and that is when the elbow struck an object. The plaintiff said he did not remember saying that. It was put to him that he said a similar thing to a doctor who was retained by his solicitors, but again, he did not remember that. It was put to him that he had not mentioned that he had been holding a radio to these medical professionals.
The plaintiff was asked about what he had told a rehabilitation physician, suggesting that he had indicated that he had been thrown around the vehicle and that his left arm was thrown out of the door elbow-first. He said he did not recall whether that was the way it happened.
He ultimately agreed that he did not have a real recollection of the event that caused his accident.
He did accept that if he had his arm resting on the door frame, with the elbow protruding, that would be contrary to his training and if he was in the process of righting himself and putting his arm further out of the window, that would be contrary to his training.
At least having regard to the cross-examination, an impression was created that the plaintiff was doing his best to reconstruct events but was willing to concede that he had some uncertainty about what had occurred.

Mr Carroll provided a statement dated 8 March 2026. As at the time of the accident, he was a fitter employed by the third defendant, assigned to work for the second defendant at the Mine. He says although there was a site supervisor from WorkPac on site, WorkPac did not provide any training or supervision for daily tasks. This was provided by the second defendant, who required him to undergo their training for driving SMVs. He says that immediately prior to the accident, he was driving the SMV to the second job for the shift, which would have taken him approximately an hour to get the job site. He turned left into the cut-through. Approximately 20m from the turn were three “pogo sticks” (that is, “hi-viz” poles from floor to ceiling), making him aware that there was something partially on the roadway.
Mr Carroll says that as the SMV passed the structure, which he now knows to be a salter, he did not notice anything which would suggest there was any impact or collision with the salter. When the SMV was approximately 5m past the salter, Mr Carroll says heard the plaintiff commence to scream in pain. Mr Carroll stopped the vehicle, got out and ran around to the passenger side. He tried to radio for help, unsuccessfully, and after attending to the injury, got back in the SMV and reversed back to the main road. Mr Carroll says he did this because he thought there was no radio reception in the cut-through and he also thought someone might be travelling down the main road that could assist. He says that while reversing in a panic, he hit the salter with the rear passenger side, where the first aid kit was kept. That impact caused the handle to break off and he could not access the first aid kit and the passenger door area.
Further, Mr Carroll says that one of the pogo sticks was knocked down as he was reversing. He says that had he collided with the salter on the way in, he would have knocked the pogo stick over in the direction the vehicle was travelling.
Mr Carroll says that although he had not seen anything stored in that cut-through prior to that time, it was a daily occurrence to drive past fixed plant equipment or attachments like the salter, with little or no room on top of the width of the SMV. It was a regular experience and he was never told by anyone not to do it. He ceased work for the third defendant in November 2021.
Mr Carroll was cross-examined extensively with reference to contemporaneous documents and earlier statements made by him. He was initially taken to a handwritten statement he prepared in the hours following the accident. It was suggested to him, based on a comment he had made during an earlier interview, that this statement was in fact a corrected statement and that he had prepared an earlier one. He denied this and no evidence of an earlier statement emerged, although it is difficult to understand why he did suggest in a contemporaneous document that this had occurred.
Mr Carroll was taken to some differences in the statement he had prepared for these proceedings and the handwritten statement. There are some differences in terms of where he stopped and what he did after the accident, but the critical information remains the same, that is, he did not consider that he impacted with the side of the salter as he drove past it, but accepts that as he reversed out in a panic after the accident, he collided with the side of the salter.
There was considerable focus in cross-examination on a hand-drawn diagram that Mr Carroll had prepared and which accompanied his handwritten statement:
Absent any explanation from Mr Carroll, the diagram would seem to be inconsistent with the contents of his statement. Firstly, as suggested to him, in the diagram, he positioned the vehicle well to the left, rather than in the centre of the cut-through, and indeed, in contact with the salter. Secondly, he included a large arrow which he suggested was the direction of travel, with the arrow pointing directly towards the back of the SMV (or “bus”, as he called it). Thirdly, the point at which he drew the SMV was directly adjacent to the salter, with seemingly both the salter and the SMV being at a slight angle, as if that explained the collision.
Mr Carroll explained the diagram on the basis that it was only meant to be a rough diagram and that it was not to scale. He said he drew the diagram in accordance with his observation but rejected the proposition that he had drawn the SMV immediately by the side of the structure much more remote from the right rib or side.
Further, Mr Carroll was taken to the front square drawn in the diagram, which he maintained was both the cabin and bonnet of the vehicle, saying:

It is difficult to understand Mr Carroll’s explanation for the diagram in the context of his handwritten statement. This is because there is nothing in the diagram which would give the impression that:
Mr Carroll was actually reversing the SMV when it came in contact with the salter;
The SMV was positioned either in the centre of the space between the edge of the salter and the right-hand wall, or as close to the right-hand wall as possible;
The position shown in the diagram was the position at which the SMV had ever come to rest, either when going forward or reversing; or
There was a pogo stick which he had hit, which was outside the line of the salter.
Further, as was demonstrated in cross-examination, there was some inconsistency between the information contained in Mr Carroll’s evidentiary statement of 8 March 2026 and the answers he provided to investigators within weeks of when the accident occurred. That inconsistency included his positioning of the SMV after it had stopped and whether he went around the front to the passenger side door (he said he went around the back during the interview). It was put to him that his diagram was more consistent with him approaching the passenger side of the vehicle from the front rather than the back, but he disagreed. It is difficult to understand how, based on Mr Carroll’s diagram, he could have accessed the passenger side door of the SMV, as two of the lines he drew intersect towards the back of the salter/SMV.
Further, there is no doubt that the handle of the compartment in which the first aid kit was located was knocked off by the impact between the side of the SMV and edge of the salter at some stage. Mr Carroll says that happened only after he was in a panic and reversed into the salter after the injury. If the version contained in his evidentiary statement is correct, he must have been able to access the first aid kit from either the front or rear of the SMV immediately after the injury and before the handle was knocked off. It might be thought surprising if, whilst out of the vehicle and having access to the first aid kit and having observed the severe and bloody nature of the injury, Mr Carroll decided to reverse his vehicle back to the main thoroughfare without even providing the first aid kit to the plaintiff to use.
The matters raised in cross-examination give rise to some doubt as to the accuracy of Mr Carroll’s version of events. He himself complained during his evidence as to how traumatic everything had been. I am sure that would be so and his recollection of some of the events might be uncertain, albeit he was not really willing to accept that.
Perhaps the real difficulty which arose for him during cross-examination is that the diagram he drew in the hours after the accident is, on the face of the diagram, more consistent with the collision happening as he was driving forwards past the salter, rather than as he was reversing.

The description provided in that incident report is consistent with that which the plaintiff asserts, being that his elbow was jammed between the edge of the salter and the frame of the cabin door. This description is not consistent with the injury occurring as the plaintiff’s elbow merely coming into contact with the edge of the salter as it was driving past. Being jammed between the two pieces of metal, one on the salter and one on the vehicle, could only have occurred if the vehicle was being driven very close to the salter, that is, within centimetres of it.
Whilst I must be cautious not to give too much weight to that description as it represents a summary of what the person who prepared the report might have been told, it is evidence which can be taken into account. The point is that the contemporaneous material prepared in the period immediately after the accident tends to be more consistent with the plaintiff’s version of events than that of Mr Carroll.
Finally, both the plaintiff and the second defendant retained independent experts to comment on a number of matters. I found some of the experts’ commentary somewhat surprising and indeed, beyond expertise. Their observations on factual matters and opinions on matters such as foreseeability could be given little weight. However, their reports were admitted without any objection and they prepared a joint report. Again, some of the opinions in the joint report seem rather obvious, including whether a passenger’s arm could protrude beyond the sill of the window, and whether the height of the sill of the window contributed to the accident. These are matters which hardly require engineering expertise.
Further, the experts were asked to opine on whether the SMV could pass through the cut-through with the salter present. Again, this is a matter of simple measurement. They were then asked whether the SMV made contact with the salter when the plaintiff’s injury occurred. They agreed that, according to the plaintiff’s statement, it did. That view is also supported by the photographic evidence.
Professor Hebblewhite points to the photograph of the indentation, or bend, in the flange of the salter, which I note has the plaintiff’s clothing still adhering to it. As he says in his report, the salter damage is clearly the result of an impact having occurred.
This issue was taken up with Dr White in particular whilst he was giving evidence. When asked to explain how he could tell that that indentation or bend must have been caused by an impact with another piece of metal, rather than the plaintiff’s elbow, he suggested that he knew how brittle sheep bones were and applied that logic. Again, I am not sure that is really a matter within his expertise.
The issue was taken up by Mr Chiu. Both Dr White and Professor Hebblewhite confirmed that it was their view that there was metal on metal at the same time as the plaintiff’s elbow came into contact with the salter. Dr White clarified his opinion, maintaining that the vehicle did hit the salter “a little bit” before the plaintiff’s arm hit the salter, pointing to scratches on the side of the vehicle, indicating metal on metal before there was a flesh on metal collision. Mr Chiu sought to establish that a post-accident diagram, which tended to suggest that there must have been a clockwise rotation of the salter as a result of impact, meant that the impact must have occurred as the vehicle was reversing, rather than going forwards.
The experts agreed with that analysis, except that Professor Hebblewhite said that the salter could have been impacted twice, so that it could have moved in both directions during those two impacts. Dr White ended up suggesting that the diagram itself did not indicate whether there was any hit going forward, metal to metal. Further, Mr Chiu used the position of the first aid kit compartment handle on the ground after the impact to suggest that the handle must have been hit whilst the vehicle was reversing. However, despite Newton’s Third Law, both experts suggested that it would be speculative to opine in which direction the vehicle was travelling merely from the position of the handle after the accident.
Cross-examination led to some confusion as to the basis of the experts’ opinions, but even despite that, they were both adamant that all of the evidence pointed to there being a metal on metal impact, as the SMV drove forwards past the salter. They seemed uncertain as to how precisely that occurred, or whether there might have been more than one impact, but neither expert concluded that there was no impact between the salter and the left-hand edge of the SMV until the SMV was reversing. There was a concession that there might have been impacts going forward and backward, but no concession that the impact only occurred when reversing, as Mr Carroll suggests.
Again, I found some aspects of the expert evidence unsatisfactory, but on the essential issue, the experts maintained their views as set out in their individual reports and in the joint report. Their opinion tends to support the plaintiff’s version of events.
Having regard to all of the evidence, including the evidence of the plaintiff and Mr Carroll, the contemporaneous material and the expert opinions, I am satisfied that there was some impact between the left-hand frame of the SMV and the outside flange of the salter as the vehicle was being driven forwards past the salter for the first time. I am unable to determine the precise point of impact, but it is notable that the indentation in the flange is suggestive of an impact with something moving forwards (with the indentation pointing forwards). Similarly, there are paint marks on the flange consistent with some contact with the exterior of the SMV. Those paint marks again suggest the vehicle was moving forward rather than backward. Mr Carroll sought to deal with this suggestion in cross-examination by indicating that he might have reversed and then driven forward again in a panic after realising the extent of the plaintiff’s injury. This is not something he had said in any earlier statement, albeit, again, it is possible that it occurred.
It is not necessary for me to find whether the indentation with the small piece of the plaintiff’s clothing remaining on it was caused by a metal on metal impact, or just the plaintiff’s elbow (which perhaps seems unlikely). It is only necessary to say that I accept that as the SMV was driving forward into the cut-through and past the salter, the plaintiff’s elbow came in contact with the flange of the salter and at least a part on the SMV came in contact with the flange on the salter. In other words, Mr Carroll was driving so close to the salter that there was some point of contact between the salter and the SMV.
I am not able to determine the precise point of impact, or whether there was metal on metal at the point of the plaintiff’s elbow, but there was some contact indicative of travelling very close to the edge of the salter.

In my view, Mr Carroll was driving too close to the edge of the salter. He says he saw the salter as he turned left into the cut-through, and was aware of the pogo sticks. I accept that he changed down into second gear as he entered the cut-through, but the fact of the impact with the salter indicates that he misjudged the situation, that is, he failed to take care to ensure that he was a sufficient distance away from the salter such that there would be no impact with the vehicle. There are a number of things that he might have done which would have prevented the accident, including:
Stop and inspect the cut-through and ensure that there was sufficient space for him to drive through the cut-through. Indeed, in his response to the statement of claim, Mr Hutton, a senior employee of the first defendant, says the rules required Mr Carroll to do so and he did not;
Approach the salter more slowly, just to make sure that he would not come in contact with the edge of the salter; and
Not drive through the cut-through at all, unless he was satisfied that he could do so without impacting the salter.
I should add that even if the left-hand side of the SMV did not actually impact with the edge of the salter, Mr Carroll must have been driving the SMV very close to the edge of the salter and too far to the left for the plaintiff’s elbow to have come in contact with the edge of the salter. Again, as agreed between the parties, it is only the elbow which suffered any injury, and it must be that the plaintiff’s elbow was protruding out from the side of the salter by a matter of a few centimetres.
The nature of the injury itself, or, more accurately, the absence of any injury or scratch to the plaintiff’s arm other than the point of the elbow, is an indication of where the plaintiff’s elbow was in relation to the side of the vehicle at the time of the impact. There was no reason for Mr Carroll to have driven so close to the edge of the salter, and if he had positioned the SMV more in the centre of the cut-through, or even further towards the right, the risk of injury would have been avoided.
These are all reasonably available measures that Mr Carroll could have taken as the driver of the SMV to ensure that the risk of injury was avoided.
Mr Carroll may not have been driving at an excessive speed, but he did not allow himself sufficient time to ensure that he could drive safely past the salter. He could have stopped and inspected the area (as Mr Hutton says the rules required). He could have slowed down to an even lower speed if he was uncertain, although it is important not to approach the question of breach with hindsight when considering what speed he might have been travelling (see Derrick v Cheung [2001] HCA 48).
Mr Carroll misjudged the situation, but in the context of the obligation imposed upon him as the driver of the SMV travelling through an underground mine, the accident occurred not merely because of an error of judgment on his part, but because he failed to take sufficient measures to ensure that either the left-hand edge of the vehicle or the plaintiff’s elbow would not impact with the salter as he drove past it.
In the circumstances, I accept that the injury to the plaintiff was caused by the failure of Mr Carroll to take reasonable care.

The second defendant was the employer of the plaintiff and the occupier and operator of the Mine. It owed a non-delegable duty of care to the plaintiff. The plaintiff alleges that the second defendant was negligent in a number of respects, including:
Failing to maintain a safe system of work;
Failing to provide proper warnings as to the presence of the salter;
Failing to provide proper instruction to drivers as to the presence of the salter and the width of the cut-through; and
Allowing an SMV with a design defect to be used on the site, the design defect being that the sill of the window of the door was at a height which permitted the elbow of a person travelling in the SMV to protrude beyond the body of the SMV.
I do not accept that the second defendant was negligent merely because:
It allowed the salter to be placed in the cut-through; or
It failed to put a barrier across the cut-through to prevent persons using the cut-through whilst the salter was there; or
It allowed the SMV to be used in circumstances in which it contained a design defect.
In respect of the first two of those matters, I accept that having regard to the measurements taken after the accident there was space for a properly and carefully driven SMV to pass through the cut-through even whilst the salter was in position. Plainly, care needed to be taken by the driver of the SMV, but this is not a matter in which the risks were such that the SMV could not have been driven safely through the cut-through.
It may be that the positioning of the salter in the cut-through increased the risk, merely because it decreased the space in which the SMV could travel, but Mr Carroll saw the salter in position and had time and space to slow down or manoeuvre the SMV in such a way as to ensure that it proceeded safely past the salter.
In respect of an allegation of a defective vehicle, I do not consider that the plaintiff has established a failure to take care on the part of the second defendant.
As stated by Mr Economidis, the CEO of the second defendant, the SMV being used at the time was part of the Driftrunner G series. In 2009, an initial design risk assessment was conducted by Heimdall Quality Engineering, which confirmed that the Driftrunner G series was designed in accordance with both New South Wales and Queensland coal mining legislative requirements. It was registered and first introduced to the Mine on 3 September 2019. It was subject to regular servicing and daily inspections. It was inspected by Justin White, deputy mine supervisor, employed by the second defendant, on 20 May 2021.
Subsequent to the accident, an investigation was undertaken by the Resources Regulator. The Resources Regulator issued a notice on the first defendant requiring the Mine to undertake further testing, including lighting of the vehicle (which is irrelevant to the cause of this accident). According to Mr Economidis, the Resources Regulator found no evidence of prior similar incidents resulting in any injury. However, on 9 June 2021, the original engineering manufacturer issued an improvement bulletin and the Resources Regulator sent out a safety alert on 21 June 2021. It was considered that modifications were needed to be made to the G series vehicles to avoid similar accidents happening in the future. Modifications were proposed, trialled and ultimately adopted.
It is important not to approach the question of breach with hindsight. Whilst it may be that differing, modified or later models of the SMV include a higher windowsill or additional barrier, which would have made it more difficult for the plaintiff to have his elbow protruding from the vehicle, that of itself is not evidence of a failure to take care on the part of the second defendant. The Court does not look backwards at how the accident occurred and determine how it might have been prevented (except in respect of causation). The question of breach is approached with foresight.
It may be that this type of accident was foreseeable, but that does not mean that it was incumbent upon the second defendant to upgrade its fleet prior to the accident. The expert evidence on this issue is suggestive of hindsight, that is, looking at what occurred, and making suggestions as to how it might have been prevented. The Court does not approach the question of breach in that way.
I am reminded of what McHugh J said in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34]:

There is no evidence that at the time of the accident, the SMV did not comply with all necessary standards and regulations, or that there was any guideline report or recommendation which suggested that SMVs of this type should not be used. There is no evidence of any internal recommendation or any internal review recommending the SMV be upgraded prior to the accident. All workers using such SMVs were trained and instructed to keep their arms within the cabin. There is no evidence of any earlier accident which might have been caused by the use of the SMV with the windowsill at the particular height.
It is not necessary that I comment in detail on the extensive evidence adduced by the defendants as to the system of work and the training, instruction and supervision provided to workers including Mr Carroll and the plaintiff at the Mine.
Subject to the matters on which I further comment, it is apparent that the second defendant had a comprehensive system in place to ensure that persons working at the Mine were properly trained, instructed and supervised.
Both the plaintiff and Mr Carroll had generally been properly trained and instructed on the proper use of the SMV. A specific risk relating to keeping body parts within the cab of the vehicle is identified in Illawarra Coal training and safety documents and the plaintiff received warning and training on this issue (having ticked a form recognising this). Mr Carroll was aware that in driving the SMV he needed to drive it in such a manner that it would not collide with the salter. This would be obvious. As indicated during cross-examination, he was aware of the speed at which the SMV might travel depending on which gear it was in.
Having said that, there are two aspects of the training and instruction Mr Carroll received which are of concern. Firstly, as I have already commented upon, when responding to the allegations in the statement of claim, Mr Hutton suggested that the rules required that the driver of an SMV to inspect a cut-through prior to proceeding through it. Mr Carroll did not do that. If he had stopped as he came around the corner, he would have gained a better appreciation of his position vis-à-vis the salter and surely would have become aware that he needed to move further to the right to drive safely past the salter.
Secondly, Mr Carroll acknowledged that he must have driven very close to the edge of the salter, even though he maintained that he did not collide with it. He said that he was never told not to do that. That might be viewed as an instruction as to the obvious, or something that a driver did not need to be told, but the evidence is relevant in the context of the onerous or stringent duty of care imposed upon the second defendant.
The liability of the second defendant necessarily involves a consideration of the nature and scope of the duty of care imposed upon it in all the circumstances. The duty is said to be non-delegable. It is necessary to address non-delegable duty of care in order to assess whether the matters which I have raised render the second defendant liable.

The High Court has further considered the concept of non-delegable duty recently in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (“AA”). In AA, a majority the Court accepted that a non-delegable duty of care may be breached by the intentional conduct of the duty holder or a delegate to the duty holder, even if the conduct in question is criminal in nature (at [6]). The effect of AA thus was to overturn the earlier approach to the contrary (see New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4) in respect of intentional criminal conduct. Perhaps the relevant question for the purposes of these proceedings is whether a party which owes a non-delegable duty of care may be liable to the person to whom the duty is owed absent any fault at all on its own part.
Conventionally, all duties of care may be discharged by the exercise of reasonable care (see Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [43] (Gummow J)). That is, if the person who owes a non-delegable duty of care takes reasonable care to ensure that their delegate, whether that person be an employee or independent contractor, itself exercises care, then the duty holder would not be liable, even it if owed a non-delegable duty of care. In Leighton Contractors, the High Court said the obligation is more stringent than merely to take reasonable care (at [21]).
Subject to the question of pro hac vice employment, which I will discuss later in this judgment, the second defendant is not vicariously liable for the conduct of Mr Carroll (see Bird v DP [2024] HCA 41 at [48] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ)). The imposition of vicarious liability is a means by which the fault of one person is attributed to another, even though that second person is without fault.
In Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Mason J (with whom Deane and Dawson JJ agreed) at 679, suggested that a non-delegable duty was a duty:

I do not take anything said in AA or St Paul’s to mean that the liability of a person who owes a non-delegable duty of care is strict, in the sense that the duty holder will be liable even absent the fault of someone. Rather, I take the concept of non-delegable duty to mean that the duty holder owes a duty to ensure that their delegate, whether that be an employee, contractor, or other person (in this case a person working with their employee in premises which it controlled), exercises reasonable care for the safety of the person to whom the duty is owed, rather than merely owing a duty to exercise reasonable care to ensure that that other person themselves exercises reasonable care.
There is a difference. If a third party, such as another employee or contractor, fails to exercise reasonable care, it must follow that the duty holder has failed to ensure that that third party has exercised reasonable care. If the obligation on the duty holder is only to exercise reasonable care to ensure that the third party itself exercises reasonable care, then there must necessarily be an analysis of what the duty holder itself did or failed to do.
In this case, the second defendant delegated the task of driving its employee, the plaintiff, around the Mine to a person who was not its employee. Subject to pro hac vice employment, it is thus not vicariously liable for the conduct of that person. However, as the second defendant owed a duty to the plaintiff to exercise reasonable care for the safety of the plaintiff as he was working underground, including being driven around in the SMV, and as that duty is not delegable, then it is liable, because it failed to ensure that Mr Carroll drove the plaintiff through the cut-through safely. It is in breach of its non-delegable duty of care.
In the particular circumstances of this matter and having regard to the very stringent duty imposed upon the second defendant as the employer of the plaintiff, it is also liable because it failed to do two things. That is, to take the precautions which it might reasonably have taken, which would have prevented the accident, being those matters to which I have already referred at [78].
The second defendant is thus liable in negligence because it failed to ensure that Mr Carroll took care when driving the vehicle and because it failed to do two things which it ought reasonably to have done.
The matters to which I have referred caused the injury to the plaintiff and thus causation is established (CLA s 5D).

The contract appears to be a standard form contract. It comprises a purchase order in standard terms and a services contract between the second defendant, another WorkPac company and the third defendant. Although the agreement is with both the third defendant and another WorkPac company and throughout the agreement obligations are placed on the contractor, which is not the third defendant, it is clear from Schedule 5 of the contract that the obligations are placed on both the WorkPac companies.
The scope of the service is said to be the provision of blue-collar supplementary labour hire for operational personnel at the Mine along with maintenance personnel for the company’s mobile equipment, fixed plant and capital projects, in accordance with the scopes of work and purchase orders issued under the contract. The scope of the services to be supplied are set out in Schedule 7. They include:
The provision of labour hire employees, with specified qualifications, skills and abilities;
The undertaking of recruiting and pre-screening candidates, to ensure those employees meet the necessary requirements;
Mobilisation of labour, including advertising, recruitment and on-boarding;
Ensuring that contractor personnel comply in terms of medical fitness for work;
Supplying suitably qualified, competent and trained personnel;
Providing resumes, licences and other certification;
Ensuring that all personnel are equipped with uniforms;
Payroll and payroll support;
Ensuring that contracted personnel are informed of rosters;
Manage, administer and document employee relations matters such as absenteeism and performance management; and
Otherwise ensuring performance requirements of the employees.
On the other hand, the second defendant’s supply responsibilities are said to include:
Site-specific safety, community environment inductions and area-specific inductions;
Provision of safety equipment and tools;
First aid services; and
Day to day performance of leave, work planning, direction and supervision and workplace safety and productivity.
Both parties were required to ensure compliance with workplace health and safety laws. Further, the second defendant agreed to provide company-specific training. Schedule 8 of the contract sets out the relevant site standards and procedures, albeit only one of the documents, being the Illawarra Coal Training and Competence Management Scheme document was in evidence.
At least on the face of the contract, the third defendant was required to provide suitably trained and competent employees, but it was the second defendant who was required to provide site-specific training, instruction and supervision. The defendants tendered a number of statements from persons who gave evidence about the system of work. Only Mr Adams was cross-examined.
For example, Jason Economidis is a director of both the first and second defendants and describes himself as the Chief Executive Officer. He says that the second defendant’s employees are responsible for the development, implementation and maintenance of safe systems of work at the Mine. He says that the second defendant’s employees are responsible for:
Developing and implementing a principal hazard management plan for both service and underground vehicle operations;
Developing and implementing risk management procedures; and
Providing workers at the Mine, including both the plaintiff and Mr Carroll, with specific training on how to operate personal transport equipment, which includes information, instruction and assessment of the dangers relating to operation of SMVs.
Mr Economidis then refers to various documents, including a Roads or Other Vehicle Operating Areas – principal hazard management) plan (“ROVOA”) dated 26 February 2021, which includes transport rules for mobile equipment operations that he said required, among other things:
Mobile equipment operators and passengers to keep body parts within the confines of the vehicle; and
Mobile equipment operators to reverse into a cut-through clear of main travel roads when parking or shunting.
He also says that on 23 September 2020, Mr Carroll commenced on-the-job training at the Mine to operate mobile equipment, including SMVs. Mr Caroll completed that training on 9 November 2020. He was assessed and signed off as competent on 14 January 2021. Both the assessors were employees of the second defendant. Mr Economidis then refers to the work order for the tasks being undertaken by the plaintiff and Mr Carroll on 20 May 2021. This was to clean Pump Station 3.
Justin Adams is a maintenance manager at the Mine. He provided a statement dated 28 May 2025 and was cross-examined. According to Mr Adams, the third defendant usually had around 15-40 workers at the Mine site. He specified the process of training and instruction (which I have already detailed). He said that given the significant number of the third defendant’s workers at the Mine, it had on-site representatives who were responsible for liaising with their workers about administrative, operational and training matters and interacting with their workers. They operated out of a mobile demountable office at the Mine. He said that the WorkPac supervisors had various responsibilities, as follows:
Informing Illawarra Coal of newly arriving and/or departing WorkPac workers at the Mine;
Representing WorkPac at weekly meetings with Illawarra Coal where operational matters were discussed, including training matters that WorkPac was attending to;
Reporting to Illawarra Coal about how WorkPac was meeting its safety obligations under the contract for services;
Explaining the training progress of recent WorkPac workers allocated to the Mine;
Interacting with WorkPac workers within muster rooms at the start and end of shifts;
Collecting safety tools at each portal to report safety metrics; and
Interacting with departmental superintendents regarding leave applications, resourcing, overtime and worker performance.
Mr Adams explained that SMVs were essential pieces of machinery for moving people and materials throughout the Mine. There would have been about 90 SMVs in the Mine’s mobile fleet. There would have been 40-50 on site at the time. Mr Adams described the process of training and qualification which was provided by the second defendant to all persons who might drive an SMV on the site. He identified the controls put in place by the second defendant for the particular mine and that the second defendant had supervisors responsible for enacting the controls, standards and processes. He was responsible for the safe operation of the conveyor belt system. The second defendant had processes on how to access a cut-through. If there was a piece of plant stored in the cut-through, there was a process of demarcation to make sure the items were visible. It was his, and everyone’s, role to enforce those standards and processes.
Mr Adams then identified the second defendant’s training and processes document relating to the transporting of personnel underground. He accepted that persons operating an SMV would have to be trained and then checked by a trainer and assessor. He was taken to the ROVOA. He said he was uncertain as to the rules about minimum clearance on each side of the SMV that a driver must adhere to. Mr Adams was taken to a reference to a minimum clearance of 600mm between a stationary machine and something else like a fixed object, but that rule would not appear to apply to the dynamic situation at the time of the accident (it related to procedures for the parking of an SMV). Mr Adams accepted that there was a risk of collisions involving SMVs and that that was a risk the second defendant took very seriously. It put in place procedures which were worked on, developed, adopted and enforced by the second defendant. It imposed specific rules about how employees were to drive SMVs underground safely. Those rules applied to any worker, whether they were employed directly by the second defendant or the third defendant.
The effect of the cross-examination of Mr Adams was really to demonstrate that it was the second defendant who developed proper systems and training for the driving of SMVs and that it was the second defendant who developed the rules which determined how the SMVs should be driven. Those rules included the requirement that SMVs reverse into cut-throughs, although it seems that rule was not generally adhered to when there was space to turn the SMV around at the end of a cut-through. The point of the rule was to ensure that no one reverses out into the main thoroughfare.
Whilst the third defendant was required to provide skilled and competent employees, it was the second defendant which provided the on-site training, instruction and supervision. Further, it was the second defendant which determined how the SMV must be driven underground. It was the second defendant who trained all the necessary workers to drive the SMVs safely. The third defendant was responsible for selecting, vetting and providing these skilled workers to the second defendant. Once on site, the third defendant was responsible for dealing with issues such as absenteeism, payroll disputes, rostering issues and ensuring general competency, but it was the second defendant which was responsible for all training, supervision and direction to all workers in the Mine, whether they be directly employed by the second defendant, or labour hire employees.
In respect of the specific task being performed at the time of the accident, it was the second defendant which controlled how the work would be done. The plaintiff and Mr Carroll were assigned the task of working on the fish tank. Mr Carroll was assigned to drive the SMV, having previously been trained how to do it and provided with rules, processes and procedures to ensure the work was done safely. The work was skilled work in the sense it involved driving a large vehicle underground in hazardous situations. It was the second defendant who informed and instructed the driver in managing, reducing and avoiding risks.
For all relevant practical purposes associated with the manner in which the work was done, the second defendant was in control. There was no document, whether it be the contract, procedures, rules or regulations, which suggests that the third defendant had any right or other entitlement to instruct Mr Carroll as to how he was to drive whilst working underground in the Mine.
In my view, the third defendant had transferred effective control of the manner in which the work was done to the second defendant, such that the second defendant became the employer pro hac vice of Mr Carroll at the time the accident occurred and having regard to the work Mr Carroll was performing at the time the accident occurred. Australian law only permits one party to be vicariously liable for the conduct of Mr Carroll. In the circumstances I have outlined and having regard to the relationship of pro hac vice employment, that party is the second defendant.
In my view, there is no basis other than vicarious liability on which the third defendant might be liable to the plaintiff, that is, the third defendant is not otherwise negligent.
As the third defendant is not vicariously liable for the conduct of Mr Carroll, the plaintiff is not entitled to succeed against it.
For completeness, I should add that although the third defendant sought to rely on s 5Q of the CLA, which plainly would have had some role to play in the interplay between vicarious liability and non-delegable duty of care, by the end of the case the third defendant accepted that, in the particular circumstances of this matter, s 5Q did not apply. I have thus not considered it.

The plaintiff was a passenger in a motor vehicle (the SMV). He was not in control of the vehicle. In the circumstances of this case, the only basis on which he could be found guilty of contributory negligence is because a portion of his arm was protruding outside the cabin of the vehicle.
Three things are clear:
It must be that some part of the plaintiff’s elbow was situated outside the line of the cabin of the SMV, as there was no metal on the salter with which the plaintiff’s elbow could have come in contact if it was wholly inside the cabin;
The plaintiff would not have sustained injury but for his elbow or part thereof being outside the line of the cabin; and
The plaintiff knew that he was required to keep all body parts inside the cabin. He had been trained, instructed and warned by the second defendant to that effect.
The question which arises is whether the fact of the elbow protruding necessarily leads to a finding of contributory negligence, or whether the circumstances of this case are suggestive of mere inattention or inadvertence, within the principles set out in cases such as McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60; Pollard.
If the plaintiff was travelling as a passenger, deliberately resting his arm wholly or in part outside the cabin, a finding of contributory negligence should be made, because this was something the plaintiff was trained and instructed not to do. Further, as an experienced worked used to travelling in confined spaces in an underground mine, the plaintiff must be taken to have been well aware of the risks of doing so.
There is no evidence that that is what happened. Further, the parties have agreed that the photographs of the injured arm do not depict any form of injury at all to any part of the plaintiff’s arm other than the elbow. That is, there are no cuts, scratches or bruises on the lower part of the plaintiff’s forearm. The plaintiff suffered a shattering and de-gloving injury to the elbow. The only way this could have happened is if he had his arm in some way bent pointing towards the flange of the salter, or else he had his arm bent but resting on the windowsill with some part of the arm, that is, the elbow, protruding out beyond the line of the cabin, perhaps only a matter of centimetres.
I would infer that the plaintiff’s elbow must have been in one of these two positions, as otherwise his elbow could not have come in contact with the flange of the salter.
However, the mere fact that his elbow must have come in contact with the salter is not enough of itself to establish contributory negligence. As I have said, if I was satisfied that the plaintiff was deliberately holding his arm outside the cabin of the SMV as the vehicle travelled along, then he would be failing to take care for his own safety.
I am unable to make that finding and the circumstances in which the plaintiff’s elbow came to be outside the vehicle remain unclear. There was reference to the plaintiff leaning towards the centre of the vehicle trying to hear the radio as they came around the corner and into the cut-through. There was a suggestion that the plaintiff might have straightened up, finding it no longer necessary or possible to listen to the radio. Perhaps he moved his arm outwards at that time. It is also possible that the plaintiff’s arm was resting on the windowsill, but wholly within the cabin, and that his arm moved slightly because of the slope of the ground in the cut-through, that is, sloping towards the left-hand side.
Assuming, as indicated by the scratches, that the left-hand side of the SMV might have impacted with the flange of the salter and then scraped along the vehicle until the point where the plaintiff’s elbow was, the plaintiff’s elbow might have been jolted slightly from the position on the windowsill outwards a little. This was a theory pursued by the Resources Regulator in its interview with the plaintiff after the accident, but the plaintiff seemed unable to remember precisely where his arm was before the accident. Further, the plaintiff accepted in cross-examination that he was unable to remember where his arm was before the accident.
Plainly, in order to support a finding of contributory negligence, the defendants must establish that the plaintiff failed to take care for his safety, in allowing or deliberately placing a part of his arm outside the cabin of the vehicle. A finding of contributory negligence requires me to make such a determination, as it is necessary that I be satisfied that the plaintiff did fail to take care, rather than that he was merely inadvertent, or misjudged the situation (see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310; [1986] HCA 20 (Mason, Wilson and Dawson JJ)) or that something else occurred, which caused the plaintiff’s arm to be in that position. Ordinarily, the mere fact of a passenger’s arm being outside the window of a vehicle might be sufficient to suggest that the passenger was failing to take care.
However, in circumstances in which:
The SMV had just come around the corner;
The plaintiff could not see in front of him, because of the presence of the radiator header tank on top of the bonnet of the SMV;
The SMV was proceeding at an angle, with the slope of the ground in the cut-through causing the vehicle to tilt to the left;
There was at least a suggestion that the plaintiff was adjusting his position to the left, having been forced to lean to the right, to listen to a radio;
I am unable to determine precisely how far the plaintiff’s elbow protruded out of the cabin, that is, whether it was by centimetres or something much greater; and
How it came to be in the position that it could impact with the salter.
Thus, the defendants have not discharged the onus of establishing that the plaintiff failed to take care of his own safety. That is, they have not established that the plaintiff was engaged in a deliberate course of conduct, taking a risk while allowing his elbow to protrude outside of the cabin. The defendants have merely established that there must have been some impact between the plaintiff’s elbow and the flange of the salter and this could not have occurred unless some part of his elbow was outside the cabin.
In these circumstances, the defendants have not established that the plaintiff was guilty of contributory negligence.

The plaintiff was aged 47 at the time of the accident and is now aged 52.
Following the accident, he was taken by ambulance to Liverpool Hospital. He remembers hallucinating in the ambulance. He was in significant pain. He underwent a nerve block to reduce the pain. His left arm was bandaged but left open for a period of 10 days. The plaintiff’s elbow was completely shattered and he suffered a degloving-type injury. He believed initially that his arm would have to be amputated. On 30 May 2021, the plaintiff underwent a reconstruction of his left arm under the care of Dr Jay Dave and Dr Owen Yang. He underwent a grafting procedure from the left side of his pelvis and right leg. The operation lasted 15 hours. He suffered significant bone and soft tissue loss, as well as a laceration to the ulna nerve and a traction injury to the radial nerve.
The plaintiff has undergone extensive surgical and medical management and has been left with a fused left elbow, with complete loss of forearm rotation. He had significant loss of wrist and hand mobility and function, resulting in loss of manual dexterity. There has only been partial recovery of the ulna nerve, with continuing neurological impairment. He has ongoing neuropathic pain.
In April 2022, the plaintiff’s orthopaedic surgeon, Dr Dave, described that he suffered from a number of problems, including:
Adhesive capsulitis of the shoulder, which required a cortisone injection;
Extensive bone and soft tissue loss around the elbow, along with transection of the ulna nerve, requiring a fusion of the elbow, with a non-conventional fusion between the radius and the distal humerus;
Problems with his wrist, where he has no supination and pronation and degenerative changes;
He has developed a regional pain syndrome over the region of the ulna nerve and has weak function of the median and radial nerves; and
He has virtually no use of his left upper limb although some improvement is expected.
According to Dr Sean Low and Dr Seamus Dalton, occupation physicians, who were retained on behalf of the plaintiff and the defendants, and who provided a joint report, the plaintiff will require ongoing management of his chronic pain with medication, as well as an exercise program. Dr Low and Dr Dalton agreed that, in terms of future treatment, the extent to which the plaintiff would benefit from ongoing psychological treatment is unclear (and deferred to the psychiatric experts relied on by the parties). Dr Dalton and Dr Low further agreed that the plaintiff’s impairments and loss of function in his left upper limb are permanent and have likely stabilised.
In terms of his psychological condition, the plaintiff retained Dr Patricia Jungfer, psychiatrist, to provide a report and the defendants rely on a report from Professor Richard Mattick. They prepared a joint report dated 2 February 2026. They were not cross-examined. Both experts agree that the plaintiff has a post-traumatic stress disorder (“PTSD”) and mood difficulties, at times reaching the severity of a major depression. Both experts also agree that the plaintiff would benefit from ongoing psychiatric review with the prescription of antidepressants, as well as episodic psychological intervention. Unfortunately, they had not examined the plaintiff since 2024 and noted the plaintiff had ceased eye movement desensitisation and reprocessing (“EMDR”) therapy. They expected the PTSD symptoms would diminish as time progressed. They expected that if he had further treatment, there would be a prospect of reduction in his symptoms over the next six to 12 months. They agree that the need for any assistance related to his physical rather than psychiatric injuries.
This is a case in which there is really no dispute as to the nature and extent of the plaintiff’s physical injuries and little dispute as to the severity of his psychological response. He is left with very little use of his left arm. For most of the time whilst giving evidence, the plaintiff held his left arm against his side, although he did demonstrate how he could move his arm and at least partially rotate his shoulder. He could grip things with difficulty. He continues to suffer from ongoing pain. There appears to be no answer to or treatment for the complete resolution of that pain. He has unsightly scarring on the left arm. He will have only very limited use of his left arm and hand for the rest of his life.
Prior to the accident, the plaintiff led an adventurous life. He met his wife in 2003. They embarked on a working holiday around Australia for three and half years before marrying in 2006. Their lives have been full of outdoor activities including four-wheel driving, fishing and similar activities.
In 2014, they purchased their home at Shellharbour. Prior thereto, the plaintiff and his wife had undertaken renovations of a number of properties. In 2017, they purchased 60 acres at Braidwood, planning to make improvements to the property and run cattle on it. The plaintiff has enjoyed boating and must be taken to have been a good sailor, having regard to the trip that he undertook after the accident.
Despite the severity of the injuries he sustained and his psychological state, the plaintiff has clearly done his best to continue with some activities. Since the accident, the plaintiff and his wife have been on a holiday to Tasmania with their children. Importantly, they embarked on a sailing trip all the way from Shellharbour up to the Whitsundays. The trip took up to nine months. They lived on the boat with their children. The plaintiff was also joined on this trip by his friend, Mr Pearson. Mr Pearson says he convinced the plaintiff to undertake the trip by acting as a ‘buddy boat’, sailing his own boat adjacent to the plaintiff’s to ensure everything was okay. Mr Pearson was cross-examined. It is clear that he did not stay with them the whole time, perhaps returning before the end of the plaintiff’s journey. It is also clear that it was the plaintiff and his wife who were doing the sailing of their boat.
The effect of Mrs Ward’s evidence was that she had limited expertise as a sailor. According to the plaintiff, he was able to do this because he purchased a boat with power winches and similar equipment which would enable him to operate the sails.
Of course, the plaintiff should only be commended for undertaking such a trip having regard to the nature of his condition, but it impacts on the damages recoverable in a number of ways, including:
It demonstrates his resilience, determination and desire to resume some activities;
It demonstrates that he is not a person who is simply unable to do anything for himself; and
It impacts on his claim for gratuitous care.
The plaintiff struck me as an impressive individual. Other than for a period when he and his wife travelled around Australia on a working holiday, he has a consistent work record and there is no reason to think he would not have continued working in the mines on a long-term basis. The defendants did not suggest to the contrary. There was no cross-examination of any medical experts and the parties did not rely on the joint occupational therapists’ report, perhaps after I queried the apparently agreed position that the plaintiff, a person with very limited movement in one arm, would only need a half hour of care per week to look after all the maintenance outside his home. That seemed to me to be an unlikely proposition. The parties did then rely on the individual reports that they had obtained (from Ms Walters for the plaintiff and Ms Hammond for the defendants).
The plaintiff suffered a severe injury from which he will suffer a life-long, significant disability, which will impact upon him both in terms of his employment and everyday activities. He continues to suffer from pain and the psychological sequalae from the occurrence of the injury. It is not necessary that I comment further on the medical evidence, as there is really no dispute between the parties as to the effect of that evidence. The dispute relates to the amount I should award for each head of damage.

The plaintiff says that he would have worked as a mechanical fitter at the Mine between the date of the accident and the present day. His earnings as at the date of the injury were $2,200 per week. Current comparables are $2,500. He claims an average rate of $2,350 net per week, being 261 weeks.
The defendant points out that the plaintiff’s calculations are based on the proposition that he would have undertaken significant overtime and he would have been appointed a shift maintenance supervisor. However, the plaintiff accepted in cross-examination that his overtime was only sporadic and indeed, it seems that he had only accrued $18,500 worth of voluntary overtime during the ten years prior to his injury. This was in part because he enjoyed pursuing recreational activities and in part because instead of overtime, he was intent on developing a side business. Indeed, it is clear from his tax returns that he was already developing the side business known as Subby Hubby & Yard Services Pty Ltd. He would undertake maintenance and yard work. His tax returns indicted an average of $94 per week for this work. He claimed a sum of $200 per week. I accept that he would have continued to develop this business, although not to the extent that the plaintiff maintains, bearing in mind that he would have continued to work long hours in the Mine. I allow the sum of $150 per week for this side business.
Although the defendants’ schedule of damages suggests that only $1,880 per week should be used for economic loss, by the end of the hearing, the defendant had agreed that the plaintiff would have been earning $2,500 at this time if not for the injury. Leaving aside that slight variation in the amount of the plaintiff’s earnings, the real issue on economic loss is whether the plaintiff has had any earning capacity since the accident and whether he will have any residual earning capacity into the future.
The plaintiff says that he has no earning capacity and that he is entitled to his full loss of income until the age of 67. The defendants say that the plaintiff has a residual earning capacity. The defendants rely on the opinion of the plaintiff’s own medico-legal orthopaedic surgeon, Dr Peter Giblin, who opined in his report of 17 February 2026 that the plaintiff would be fit to work 20 hours per week in a sedentary environment. Further, this was generally agreed to by Dr Duckworth in the joint conclave. The defendants also say that:
The plaintiff’s condition is showing signs of gradual improvement;
By undertaking the sailing trip, the plaintiff has demonstrated greater capacity than he maintains;
The plaintiff had failed to inform a number of medical practitioners about the fact of his sailing trip; and
According to an earning capacity assessment obtained by the defendants on 3 February 2025 (“ECA Report”), the plaintiff would be fit and capable of performing a number of roles, including an automotive service advisor and customer service coordinator.
The plaintiff was cross-examined on the idea that he could work as an automotive service advisor. His response was to suggest that no one would give him a job. In submissions, it was submitted that he could not do the job because he could not use a phone and the job would necessarily require the use of two hands. That is not clear from the ECA Report, which proposed jobs that the plaintiff could do having regard to his level of disability.
There is no dispute that the plaintiff would be unfit to undertake his old job and unfit for any form of manual work or work in a mine. In these circumstances, particularly having regard to the plaintiff’s excellent work record and long-term history of working in the mines, the plaintiff would be entitled to his full loss of income except to the extent that he has or has had any residual earning capacity.
The onus is on the defendants to establish that earning capacity (see Watts v Rake (1960) 108 CLR 158 at 163-164; [1960] HCA 58 (Menzies J) (“Watts v Rake”); Mead v Kerney [2012] NSWCA 215 at [16]-[23] (“Mead v Kerney”); Ryan v AF Concrete Pumping Pty Ltd [2013] NSWSC 113 at [109] (Adamson J) (“Ryan v AF Concrete”)). Other than a brief return to work on light duties in 2022 (which the plaintiff could not continue to do because of the driving), the plaintiff has not undertaken any work. He has not applied for any jobs. This must in part be because of the nature of his psychological condition. I am satisfied that by reason of both his physical and psychological state, he has been unfit for work since the accident.
In the circumstances, I am satisfied that the plaintiff is entitled to his full loss of income since the date of the accident. That amounts to 261 weeks at $2350 per week, which totals $613,350.
In addition, he is entitled to a sum of $150 per week on account of the side business that he would have been undertaking, which totals $39,150.

As for the future, the principles remain the same. The defendants submit that through cross-examination of the plaintiff about his activities post-accident and the contents of the ECA Report, they have demonstrated that the plaintiff has a residual earning capacity. A number of jobs were put forward, albeit the plaintiff was only cross-examined about on the job of automotive service advisor.
The plaintiff submits that the defendants have not discharged their onus, because the defendants did not put any other or different jobs to the plaintiff. Whilst I accept that the defendant bears the onus in accordance with Watts v Rake, I do not consider that that requires the defendants to take the plaintiff through every job that he might be able to do. The defendants relied on the ECA Report. A number of jobs were identified. True it is that the defendant only took the plaintiff to one of the jobs, but the plaintiff was on notice of the potential number of other jobs. The ECA Report includes details of such jobs being available.
There is, of course, merit in the plaintiff’s suggestion that he would have difficulty obtaining such work in view of his disability, but the Court should be cautious before assuming that because a person such as the plaintiff suffers from such a disability, he is unemployable. Many people with disabilities work. It is surely more difficult to obtain employment and the opportunities may be more limited. However, I do not accept the plaintiff’s contention that “no one will give me a job” as a complete answer to the suggestion that he has a residual earning capacity.
It is not, in my view, necessary for the defendants, having raised the issue through the service of evidence, to take the plaintiff through every job that he might be capable of undertaking and ask for his response to that suggestion. Such an exercise would invite repeat answers of the same ilk, perhaps such as emerged in this case, that is, when the defendants put to the plaintiff that he could do a particular type of job, that is, an automotive sales adviser, the plaintiff’s response was to query who would employ him. That is no doubt a genuine response from the plaintiff and no doubt reflective of his state of mind.
People with disabilities often find it difficult to obtain work and their labour market is significantly narrower than the general labour market, but I suspect that disability advocates and those working in that field would eschew the idea that persons with severe disabilities cannot work. Indeed, there are employment agencies which specialise in finding work for people with disabilities. The point is that it is no answer for the plaintiff to question who would employ him, because there is no onus on the defendant to establish that there is a job available to the plaintiff starting the next day in his area which he would definitely obtain. The onus is only on the defendant to establish that there is work for which the plaintiff has a capacity to undertake which is generally and reasonably available.
The defendants might have taken the plaintiff through each of the jobs referred to in the ECA Report and indeed might have raised with the plaintiff that he could undertake any other type of work (if there was any), but did not do so. A defendant does not always need an expert report on earning capacity, as the Court can bring to bear its own experience in certain types of work and industry if the defendant raises the capacity to do such work even on a part time basis.
In the end, the assessment of loss of earning capacity is an evaluative exercise having regard to all of the evidence. In this matter:
I am satisfied that the plaintiff will remain unfit for the type of work he was doing prior to the accident or any similar type of work in the mining industry;
I am satisfied that the plaintiff would have continued to work in the mining industry in similar work until the age of 67 if not for his accident;
I am satisfied that the plaintiff would have continued to earn the sum of $2,500 net per week (the agreed figure) until the age of 67 if not for the accident;
I am satisfied that the plaintiff would have continued to pursue his side business, which would have generated some extra income on a weekly basis, albeit not the amount ($200) sought by the plaintiff. I will allow the sum of $150 per week for that side business until the age of 67; and
Having regard to the both the plaintiff’s physical and mental state, his need for treatment and his ongoing rehabilitation, I am satisfied that he is entitled to his full loss of income for the past.
However, my approach to the future is slightly different. In assessing whether the plaintiff has any remaining ongoing earning capacity, I have regard to all of the medical evidence, the ECA Report, and other evidence, such as the plaintiff’s own evidence and matters which emerged during cross-examination. There is evidence from a doctor relied upon by the plaintiff, Dr Giblin, an orthopaedic surgeon, to the effect that the plaintiff does have a capacity to work (Dr Giblin suggested he could work 20 hours per week in a sedentary environment).
The rehabilitation physicians, Dr Low and Dr Dalton, agreed that the plaintiff is capable of performing work which does not require use of his left arm and could make use of his unrestricted ability and his retained cognitive and communication skills.
Dr Low considers the plaintiff’s physical symptoms would make successful re-training unlikely. Dr Low agreed with Dr Dalton that there was an interplay of psychological factors further impacting on the plaintiff’s work capacity. Neither doctor was cross-examined, leaving me to have regard to their opinions along with all the other evidence. Whilst acknowledging the plaintiff’s level of disability, his psychological symptoms and low motivation and perhaps scepticism about his ability to return to work, it is relevant that the plaintiff has been able to return to some of the activities that he enjoyed prior to the accident. In particular, he was sufficiently motivated and capable of undertaking what most people would view as a very adventurous activity, sailing to the Whitsundays. On any view, he must have been capable of and motivated to plan, prepare and undertake that exercise. It is all very well to say sailing equipment like power-operated winches were used, but the plaintiff was out on the open sea with his wife and two children, none of whom were capable of sailing the boat themselves.
As I said during the hearing, the plaintiff was entitled to undertake whatever activity he wanted, and going on a holiday does not deprive a person of their entitlement to damages for loss of earning capacity, if he was so incapacitated during the period of that holiday. However, the ability to undertake such an activity must be taken account of in assessing what he may be doing in the future.
I do not know why the plaintiff did not inform the doctors he saw before and after the sailing trip that he would be or had undertaken such an activity. I do not accept that he was trying to deceive anyone. Plainly, he is not the type of person who will be sitting around and doing nothing on a long-term basis. I accept the evidence of Dr Dalton and other experts such as Dr Giblin that the plaintiff has a capacity to work. I accept that he has demonstrated through his own activities that he is capable of doing many things, even with such a restriction to his left arm. I also accept the evidence adduced by the defendant through the ECA Report that there is some work which the plaintiff would be capable of performing having regard to his skills, training and expertise, even allowing for some aspect of retraining.
In the end, I accept the defendants’ submissions on this issue. The plaintiff has qualifications in mechanical engineering and has the skillset to read plans and drawings. He could work in an administrative capacity and could undertake some of the jobs suggested in the ECA Report, at least on a part time basis. It is unrealistic to expect that the plaintiff will not return to work, at least on a part time basis in some capacity in the future. The defendants have identified a number of roles that he could possibly perform and the availability of such work.
The defendants submit that the plaintiff has a capacity to earn between $755 and $825 a week (gross). I assess the plaintiff’s earning capacity at $650 per week (net).
In the circumstances, the plaintiff’s claim for future loss of earning capacity is assessed in the sum of $1,850 per week until the age of 67, which amounts to $1,431,900, less 15% on account of vicissitudes, which amounts to $1,217,115.
In addition, the plaintiff is entitled to the sum of $150 per week, being the income he would have earned from the side business, being $116,100 less 15% on account of vicissitudes, which amounts to $98,685.

Mrs Ward estimated that she now undertakes an extra 9-10 hours per week of extra work that the plaintiff would otherwise have done around the house.
The plaintiff also relied on the report of an occupational therapist, Susan Walters, dated 15 August 2022. No up-to-date report was provided.
The defendants rely upon the report of Deborah Hammond, occupational therapist, dated 16 January 2025. There are significant differences between the occupational therapists in terms of their assessments of the amount of care that has been needed and will be needed in the future. Although the occupational therapists met in conclave and provided a joint report, the parties abandoned reliance upon that report.
Assessing a claim for care is very much a matter of evaluation and impression, particularly when the care has been and will be provided on a gratuitous basis. Witnesses’ reflections and estimates often vary wildly. The precise and methodical approach of expert occupational therapists in identifying how many minutes or hours each task takes and then adding those estimates up can sometimes provide an over-estimate of the amount of time actually spent on tasks.
Having said that, persons suffering from severe and perhaps catastrophic injuries are often incapable of doing much of what they previously had been able to do and the burden falls on family members and other persons to assist them. I do not by these comments intend to suggest that family members do not spend significant parts of their week undertaking tasks that the injured person would otherwise have undertaken.
Ms Walters broke down the periods for the past up to the time of her report to four stages, being for six weeks, 20 weeks, nine weeks and 35 weeks, respectively, suggesting estimates ranging between 18.75 and 9.5 hours for domestic assistance, providing an estimate of the time the plaintiff needed to do the task prior to the accident, and then providing an estimate of the care and assistance provided to him for those activities post-accident. For example, Ms Walters estimated that pre-accident, the plaintiff spent 18.75 hours per week on domestic activities and 9.25 hours per week on gardening and outdoor work. As for post-accident, Ms Walters provided various estimates between 6.5 and 14.75 hours per week as being the gratuitous care provided for domestic assistance and then only half an hour per week in terms of care provided for outdoor activities.
As of August 2022, Mr Walters estimated that the plaintiff was receiving 10.5 hours per week care, which included outdoor assistance. This generally accorded with the evidence of the plaintiff’s wife. It must also be the case that not much by the way of outdoor assistance was being provided, because it is inconceivable that all of the outdoor work could have been undertaken by someone else in half an hour.
Ms Walters has added a further allowance for assistance to the children, which the plaintiff used to provide as their father, but which she estimated would now be provided by other persons. It is not necessary that I consider that further, as no claim was made. In the end, I understand Ms Walters to be recommending 10 hours per week in total, including external and internal domestic assistance.
Ms Hammond undertook a similar exercise. She pointed out that Ms Walters had taken a different history from her regarding the plaintiff’s pre-accident domestic responsibilities, suggesting Ms Walters had overestimated his contribution to internal domestic duties. Ms Hammond calculated the plaintiff’s past needs in different periods from Ms Walters and for different amounts. For example, as of December 2022, she opined the plaintiff would only need 5.5 hours per week including internal and external assistance. For the period after December 2022, he would only need 15 minutes care per week. This is because she said he was noted as doing lots of activities over the holidays including tying knots for fishing. She said he had the function to do most tasks.
In my view, in real and practical terms, the plaintiff relies heavily on his wife to do quite a lot of the things he used to do but is now incapable of doing. However, he still manages to do many things that it might be thought he would be incapable of doing, such as some outdoor garden and house maintenance.
The parties ended up agreeing on a sum for past care of $127,207, which obviously allows for a significant level of gratuitous care on a weekly basis.
For the future, the plaintiff claims a mixture of gratuitous and commercial care. He needs some personal assistance and some limited assistance in undertaking domestic tasks. Mrs Ward gave evidence of the likely limited use of commercial care.
Having regard to the opinions of both occupational therapists and the lay evidence, as well as all the medical evidence on the plaintiff’s capacity, and assuming some approximation, I will allow:
Two hours per week commercial care, which will include the outdoor jobs (at the rate of $61 per hour); and
One hour per day gratuitous care (at the rate of $37 per hour).
Applying the multiplier of 833.8, this amounts to:
$101,723.60 for commercial care; and
$215,954.20 for gratuitous care.

Ward v Endeavour Coal Pty Limited

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

The evidence

How did the plaintiff’s accident happen?

The plaintiff’s evidence

Mr Carroll’s evidence

Other evidence

Conclusion as to circumstances of the plaintiff’s injury

The risk of harm

Did Mr Carroll fail to exercise reasonable care?

Liability of the second defendant

Non-delegable duty of care

Liability of the third defendant

The contract of employment

The contract between the third defendant and the second defendant

Apportionment of liability

Contributory negligence

Assessment of damages

Non-economic loss

Past loss of earning capacity

Loss of past superannuation

Loss of future earning capacity

Loss of future superannuation

Loss of advancement

Past out-of-pocket expenses

Future out-of-pocket expenses

Cost of prothesis

Past and future care

Fox v Wood damages

Conclusion

Orders

Parties

Legislation Cited (8)

Cases Cited (45)