Duffin v Mount Arthur Coal Pty Ltd

1. [1]

   HER HONOUR: The plaintiff seeks damages for injuries she sustained in the course of her employment with the defendant. On 6 March 2013, the plaintiff suffered injuries when a grader which she was driving struck a “lamination” in the road, causing her to be thrown around in her seat. The plaintiff suffered resultant physical and psychological injuries.

2. [2]

   The plaintiff is Gemma Ann Duffin. The defendant is Mount Arthur Coal Pty Ltd. The plaintiff relied upon her court books (Exs B(i) and B(ii)). The defendant relied upon its court book (Ex 5).

3. [3]

   The plaintiff gave evidence and was cross examined at length. Drs David Millons and Alan Hopcroft, orthopaedic surgeons; David Cockbain and Jason Wagstaffe, occupational health and safety and risk management consultants; Ms Barbara and Ms Zeman, occupational therapists; and Mr Warren John Freeman, psychologist, also gave evidence and were cross examined.

Background – pre-accident history

1. [4]

   The plaintiff grew up in Muswellbrook, where she attended Muswellbrook High School and completed year 10 in 1988. In 1989, she enrolled at TAFE and studied Administration for a year. In 1990, the plaintiff obtained casual work at Woolworths in Muswellbrook. In 1991, she was transferred to Woolworths Kotara, where she worked for a couple of years as a casual employee.

2. [5]

   When the plaintiff was 21, she returned to Muswellbrook and worked in the vineyards as a labourer. She then worked as a bar attendant for a few years before gaining casual employment for several years as a leather technician.

3. [6]

   For six weeks in 1997, the plaintiff worked at the meat works in Aberdeen on a short-term contract, before securing a job as a bar attendant at a hotel and bowling club. She worked at the bowling club for a number of years.

4. [7]

   Between 2000 and 2007, the plaintiff was employed as a retail assistant at Gould Brothers Timber and Hardware Store.

5. [8]

   On 14 January 2008, the plaintiff began her employment with Mount Arthur Coal Pty Ltd at the Mount Arthur Coal Mine (“the Mine”). Her job title was “production employee”. Initially, she was a trainee with the “Production - B Crew”. The traineeship took two years, and she completed it on 13 January 2010.

6. [9]

   Over the course of the traineeship, the plaintiff completed all the requirements to be fully certified as a production employee. When she completed the traineeship, she obtained a Certificate III in Surface Operations Coal Mining Operations. In that role she operated CAT trucks, Liebherr trucks, water trucks and graders.

7. [10]

   In 2012, the plaintiff was taught how to use a drill. These drills are used to create holes, into which explosive charges are placed.

How did the accident occur on 6 March 2013?

1. [11]

   Liability is strongly in dispute. The critical issue to determine is whether the Cat 24 grader (“the grader”) driven by the plaintiff hit a “lamination” or a “windrow”. A grader is a large motorized construction machine.

2. [12]

   It is the plaintiff’s case that she suffered her injuries on 6 March 2013, when a grader she was driving on Lambs Lane struck a lamination and threw her around in her seat. In short, a lamination is a breakdown of any road surface (T 167.39-48), including a pothole, pile of dirt or rock (T 242.43-46). More technically, a lamination occurs where a road has gradually built up with sheeted gravel and clay material. As laden trucks—some of them 400 tonnes—traverse over these roads, particularly in wet weather, the material lifts and layers of material tend to delaminate. This delamination can cause holes to form in the hall roads, depending upon whether the material is soft or hard (T 286.19-25). If the plaintiff suffered her injuries when the grader struck a lamination, then the unchallenged expert evidence leads to the conclusion that the defendant was negligent.

3. [13]

   However, it is the defendant’s case that the plaintiff suffered her injuries when the grader struck a “windrow”. A windrow is an earthen embankment. It is half the height of the wheel of the largest truck on site, and exists to prevent vehicles from going over the side of a road (T 164.18-25). If the plaintiff suffered her injuries when the grader struck a windrow, then the unchallenged expert and other evidence leads to the conclusion that the defendant was not negligent, and the accident was the plaintiff’s own fault.

4. [14]

   The plaintiff’s evidence of how the injury occurred is as follows.

5. [15]

   On Wednesday, 6 March 2013, the plaintiff was rostered to work the night shift at the mine on the grader (T 228.47). Her shift commenced at 6.30 pm and was scheduled to finish at 6:40 am.

6. [16]

   At the pre-shift meeting, the plaintiff had a conversation with David Seabrook, the Open Cut Examiner (“OCE”). Mr Seabrook told the plaintiff that she was to pick up the grader located at a part of the pit known as “Crib Hut 8” and grade a drill pattern at the bottom of Snake Gully. Crib Hut 8 is situated on the south side of the pit. The plaintiff drew two diagrams of the route (Exs 7 and 8). A topographical map shows the Mount Arthur Site Plan as at 5 March 2013 (Ex 6).

7. [17]

   When the plaintiff went to start her shift, she received a message from Mr Seabrook over the private two-way radio. Mr Seabrook instructed the plaintiff to grade the drill pattern not at the bottom of Snake Gully, but at another part of the pit called McLeans Hill. McLeans Hill is on the north side of the pit and is approximately 8 kilometres by car from Crib Hut 8.

8. [18]

   In cross examination, the plaintiff gave the following evidence regarding the weather conditions on the night of the accident (T 249.30-50; T 250.1-10). She agreed that the pit had just recovered from extensive wet weather. When asked about whether the weather had affected the area where she was driving on the night of her accident, the plaintiff stated that the road had dried and trucks were running on it. As far as she could see, the road surface appeared to be normal. She agreed that if she had gone too close to the sides of the road, she would have run a risk of striking the parts of the windrow which stuck out onto the roadway. As stated, her evidence was that she did not strike a windrow.

9. [19]

   As instructed by Mr Seabrook, the plaintiff drove the grader from Crib Hub 8 past an area known as “Combustion Dump 1”, down onto a road known as the A-Road, and then onto Lambs Lane.

10. [20]

    Shortly after she had driven onto Lambs Lane, the plaintiff had a mechanical issue with the grader. She pulled off Lambs Lane into a “safe stopping area”, from which she called Mr Seabrook on the two-way radio and reported the problem. The plaintiff remained stationary for approximately one hour while mechanics arrived and repaired the grader. Once the grader was repaired, she recommenced driving along Lambs Lane towards McLeans Hill. She said that when she re-entered Lambs Lane, the grader was operating normally.

11. [21]

    The plaintiff drove along Lambs Lane for approximately 3 kilometres and approached an intersection with a road known as Red Rock Ramp.

12. [22]

    The plaintiff gave evidence that it was pitch dark. Describing the scene, she said, “The only lights you can see are if you drive onto a dump, you see the dump light. If you drive down to a digger or a shovel you see their light, or other vehicles’ lights. Not necessarily vehicles’ lights, not necessarily graders’ lights, you see other truck lights.” There was no stationary fixed lighting in this particular area. The only light came from the vehicles that might happen to be on the road. The lights from the plaintiff’s grader were on (T 17.35-50).

13. [23]

    At about 8.00 pm, the plaintiff was travelling along Lambs Lane. It was dark and she was using the grader’s headlights to illuminate the surface of the lane as she drove along. She was not using the grader’s work lights, which illuminate under the grader, because she had been instructed to use headlights when driving from point A to point B within the pit.

14. [24]

    As the plaintiff was travelling on Lambs Lane approaching the intersection with Red Rock Ramp, she was driving at approximately 50 kilometres per hour. She knew that area of the pit was a “give way” section, meaning vehicles had to give way to larger vehicles as they approached from the left.

15. [25]

    There is a hierarchy of vehicles that operate within the mine. The largest are vehicles known as “floats”. Next are trucks, followed by ancillary equipment including graders, dozers, pushcarts and loaders. The lowest-ranked vehicles are light vehicles, which are four-wheel-drive vehicles used for transporting personnel and small pieces or equipment around the mine. Under this hierarchy, a grader such as the one the plaintiff was driving would be required to give way to all other vehicles except light vehicles. The plaintiff was taught that the reason vehicle operators were to give way to the left was because truck drivers could not see out of the right-hand windows of their trucks.

16. [26]

    As the plaintiff approached the intersection, in accordance with her usual practice, she began to move the grader further to the left-hand side of the road. As she was travelling on Lambs Lane, she was also aware of the danger of larger trucks coming up behind her and not seeing her grader.

17. [27]

    As she drew closer to the intersection, the plaintiff decreased speed so that she was travelling at approximately 20 kilometres per hour. She steered the grader as far to the left as possible. On the left-hand edge of Lambs Lane was a windrow made of dirt, which had been created to stop vehicles from breaching the area and going over the high wall. The windrows were constructed by dozers pushing dirt into a pile and then flattening the top. The presence of the windrow prevented her from moving too far to the left.

18. [28]

    From her position approaching the intersection of Lambs Lane and the Red Rock Ramp, the plaintiff knew that there was a combustion dump situated on the right of Red Rock Ramp. A digger and shovels were located to the left. The plaintiff also knew that Red Rock Ramp could be busy with large trucks transporting coal and/or dirt to the combustion dump. Because the trucks weren’t outfitted with brakes, they struggled to maintain a grip on the road in wet conditions. The trucks were fitted with retarders so that if the truck wheels lost grip, the wheels would lock and slide until the truck regained control.

19. [29]

    In order to see if it was safe to enter Red Rock Ramp, the plaintiff twisted in her seat to look up and down the road. She also tried to look behind her to see if there were any vehicles approaching from behind.

20. [30]

    The roads within the pit were unsealed and topped by a smooth dirt surface. After wet weather when roads have been damaged, they are scraped by dozers so they can dry out and allow trucks to run without problems. The graders usually grade piles of dirt called “fines” into the middle of the road. Once these piles are dried, they are graded back over the road to make it smoother. The reason the scrapings are placed in the middle of the road is so that the graders can grade the fines to both edges of the road.

21. [31]

    In accordance with her usual practice, the plaintiff did not expect to find a pile of dirt on the left edge of the road. She expected any pile of dirt to be in the middle of the road.

22. [32]

    When giving evidence, the plaintiff explained that the trucks are big enough to drive over a pile of dirt without even being jolted. The smaller light vehicles can maneuver around the piles. The plaintiff expected to find a flat—although not necessarily smooth—surface on the left-hand edge of Lambs Lane.

23. [33]

    The plaintiff says that she did not see the lamination she hit because she was twisting in her seat checking for other vehicles, and also because it was night. She only felt the lamination when she hit it and was jolted up and down. She immediately felt pain in the lower left-hand side of her back. During cross examination, the plaintiff stated that she was jolted in her seat five times (T 19.44-45).

24. [34]

    After she had struck the lamination, the plaintiff continued through the intersection and drove to the McLeans Hill drill pattern. Once she had arrived inside the drilling area and the grader was stationary, she called Mr Seabrook. As best she can recall, she and Mr Seabrook had the following conversation:

25. [35]

    The plaintiff parked the grader in front of the drill, got out and spoke to a fellow colleague, Andrew Ellis. She experienced a great deal of pain when she was attempting to get out of the grader. As best she can recall, she said to Mr Ellis:

26. [36]

    When Mr Seabrook arrived at the drill, he said words to the following effect:

27. [37]

    Mr Seabrook then drove the plaintiff in the light vehicle. On the way to first aid, Mr Seabrook swapped vehicles with Chris Bags, who drove the plaintiff the rest of the way. The plaintiff says the drive back from the drill at McLeans Hill to first aid at deployment was very bumpy and caused her to experience even more pain in her back.

28. [38]

    When the plaintiff arrived at first aid, Mr Bags had to help her get out of the light vehicle, as she was in too much pain to get out unassisted. She asked Mr Bags to get her some Panadol. He gave the plaintiff two of his own Panadol, as the first aid room did not have any. He helped her up onto a bed.

29. [39]

    Mr Bags administered ice treatment on and off for 15 minutes at a time for an hour. He then returned to work and left the plaintiff in the first aid room to rest. Throughout the night, Steven Hansen, first aid officer, and Mr Seabrook came to check on her.

30. [40]

    The plaintiff understood that Mr Seabrook had completed an incident report in respect of her injury. Anthony Margetts, the mine manager, came and saw her at about 6.20 am on 7 March 2013, just as she was getting up. They had the following conversation:

31. [41]

    Mr Margetts then picked up the plaintiff’s crib bag and carried it out to the ladies’ bathhouse. He handed it to the plaintiff and said, “Hopefully I will see you tonight, and I hope the pain gets better.”

32. [42]

    The plaintiff needed assistance to get changed. She then got into a share work car with two other mine employees. She had to lie down in the back of the car on the way home, as sitting up caused her too much pain. She could barely walk. She says that when she tried to sleep when she got home, she could only sleep for a couple of hours because the pain was so terrible.

33. [43]

    The plaintiff’s evidence that she suffered her injuries when the grader struck a lamination, jolting her up and down in her seat five times (T 23), is consistent with her evidentiary statement (Ex B(i), tab 2.1 page 22). There, she stated:

34. [44]

    It was also consistent with her updated evidentiary statement (Ex A, [35]-[42]); her oral evidence (T 19.40-24.5); her telephone interview with the liability experts on 25 January 2016 (Ex B(i), page 57, [54]-[55]); notes of Muswellbrook Physiotherapy (Ex B(i), pages 322-323) stating, “In grader last night - hit laminations”; and notes of Aberdeen Surgery on 11 March 2013 (Ex F, page 32) stating, “Hurt her back at work on Wednesday on grader, she was just driving, hit lamination in road.”

35. [45]

    There are also two claim forms that were signed by the plaintiff on 11 March 2013 (Ex B(i), pages 33-35) and an event report (Ex B(i), page 37), all of which state that the plaintiff hit a lamination on the road.

36. [46]

    The defendant prepared a confidential report of the plaintiff’s accident. It was jointly authored by Mr Seabrook, who was the investigation supervisor, and Frank Botha, the investigation auditor. It contains a brief description of the accident stating that the plaintiff stated that while crossing the Lambs Lane/CD3 Dump intersection in grader 086, she hit a lamination in the road causing pain in her lower left back that intensified after 15 minutes. Under “Immediate Actions Taken”, the report states that the plaintiff was taken to first aid for ice treatment for the remainder of the shift, and that a grader was called to repair the road where the injury occurred (Ex B(i), page 37).

37. [47]

    The confidential event report (Ex B(i), pages 37 and 38) relevantly reads:

38. [48]

    The defendant submitted that the weight to be given to a representation recorded in a business record is only ever as good as its source. Section 69(2) of the Evidence Act 1995 (NSW) requires perception of the event recorded: see Lithgow City Council v Jackson (2011) 244 CLR 352. As such, the report provides evidence of nothing more than that the plaintiff said she hit a lamination. Furthermore, the defendant’s business record indicating that a grader was sent to grade the roads is not an admission of guilt, but rather an indication that the defendant was aware by reason of the wet weather that the roads may have been in a state of disrepair requiring grading. It is a neutral piece of evidence. The defendant submitted that there is no business record which indicates that there was found to be a lamination.

39. [49]

    I disagree. The investigation report records the events of the accident. The information it contains is consistent with the plaintiff’s version of events and her previous conversations with her supervisor, Mr Seabrook. He is one of the authors of the confidential event report. The report noted that the roadway was somewhat damaged due to the recent wet weather. More significantly, the report stated that the operator of the grader (the plaintiff) failed to see the hole in the road and drove through it, and that the immediate action taken was to call a grader to repair the road where the injury occurred. It further stated that other operators using the area had also failed to notice the hole in the road, which is why the hazard remained.

40. [50]

    The plaintiff gave evidence that after the incident, while she was in first aid, she had a conversation with her supervisor, Mr Seabrook. She said to him, “Did you see what I had hit?” He replied, “Yes, a whole heap of crap laminations in there….We got it fixed” (T 252.47-50). In other words, the plaintiff’s supervisor had inspected the site where the accident occurred. His observations of the “whole heap of crap laminations” are broadly consistent with the plaintiff’s version of how the accident occurred.

41. [51]

    At about 1.00 or 2.00 pm on the day of the accident, Mr Seabrook called the plaintiff as she was recovering in her home. The plaintiff recounted their conversation as follows:

42. [52]

    The plaintiff then saw Mr Henderson, who suggested that she should not go to work. Mr Henderson told her that she had a muscle strain and that the pain would improve after some rest. Despite Mr Henderson’s advice, the plaintiff decided to go to work because she did not have a doctor’s certificate.

43. [53]

    The plaintiff arrived at work at approximately 6.40 pm and went to see Mr Seabrook in his office. He suggested that she go home. The plaintiff recounted their conversation as follows:

44. [54]

    Mr Seabrook then called over Steve Nichols, with whom the plaintiff had the following conversation:

45. [55]

    The plaintiff was able to rest over the weekend, as she was rostered off work. She took some Tramadol. The plaintiff returned to work on Monday. Although she had spent all weekend resting, she was still in excruciating pain.

46. [56]

    When the plaintiff arrived at work on Monday morning, she was in substantial pain. She saw Mr Seabrook, who said, “You’ve got to see Christie Yeuller. I’ve sent her an email telling her what happened.”

47. [57]

    At approximately 7:30 am, Ms Yeuller saw the plaintiff and said, “I’ve seen the email from David Seabrook. I’m just trying to organise a meeting with the OCE and the Superintendent. Just stay here and get as comfortable as you can.”

48. [58]

    Between 9.00 am and 1.00 pm, the plaintiff met with Ms Yeuller, Mr Seabrook and Frank Botha and told them what had happened to her.

49. [59]

    On 11 March 2013, the plaintiff completed an employee’s compensation claim form. Under the heading “What Happened”, the plaintiff wrote, “Whilst driving drill prep grader, I hit lamminations [sic] in the road + was jolted up + down” (Ex B(i), page 33).

50. [60]

    On 12 March 2013, in the accident/incident form completed by Mr Seabrook as the plaintiff’s supervisor, he described how the incident as follows:

51. [61]

    It is convenient that I record here that the defendant did not provide an affidavit of Mr Seabrook or call him to give evidence. While Mr Seabrook no longer works with the defendant, he was able to be located at the time of the trial (Aff Jessica Boatwright, 9/9/2019). The defendant provided no explanation for his absence. The plaintiff submitted that a Jones v Dunkel (1959) 101 CLR 298 inference should be made against the defendant.

52. [62]

    In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 (“Hellicar”) at [166], the High Court reaffirmed the principle flowing from Lord Mansfield’s dictum in Blatch v Archer (1774) 98 ER 969 at 970 that “[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”

53. [63]

    The decision in Jones v Dunkel was described as “a particular and vivid example” of how such principles may be used. The Court in Jones v Dunkel at 308 per Kitto J held that:

54. [64]

    In Fabre v Arenales (1992) 27 NSWLR 437, Mahoney JA (with whom Priestley and Sheller JJA agreed) stated at 449:

55. [65]

    Not only has the plaintiff given evidence of contemporaneous conversations with Mr Seabrook both before and after the accident as to what happened, Mr Seabrook also completed the injury form and the confidential event report. His evidence is critical in substantiating the plaintiff’s case. It is my view that this Court can comfortably draw a Jones v Dunkel inference that Mr Seabrook was not called because the defendant feared to do so. I accept that the plaintiff’s versions of the conversations are true.

56. [66]

    As stated, it is the defendant’s case that the plaintiff suffered her injuries when the grader which she was driving struck a windrow, not a lamination. This is based on histories recorded in the notes of Mr Freeman on 19 July 2015 and Dr Bentivoglio on 6 October 2015 (both nearly two and a half years after the accident), as well as the amendments made to the plaintiff’s statement of claim and what she allegedly told the experts concerning how the accident occurred.

57. [67]

    Mr Freeman is the plaintiff’s psychologist. In his handwritten clinical records dated 19 July 2015 (Ex 10), he recorded, “Travelling grader, twisted in seat, hit hard edge of windrow (Mt Arthur Coal). Jolt caused constant back pain.”

58. [68]

    The defendant submitted that this is a candid, yet precise and accurate description of what occurred. It is consistent with other evidence volunteered by the plaintiff that she was keeping to the left as much as possible.

59. [69]

    Mr Freeman gave evidence and was cross examined via telephone link. He stated that he had been more interested in the plaintiff’s psychological situation than how the accident occurred. He gave the following evidence (T 415.44-52):

60. [70]

    Senior Counsel for the defendant asked Mr Freeman about an entry he made in his handwritten notes as to the plaintiff’s explanation of how the accident occurred (T 419.22-44). Their exchange is as follows:

61. [71]

    In re-examination, Mr Freeman was asked if the plaintiff could have said something along the lines of, “As I was twisting in my seat, I hit a lamination which was located near the windrow that formed the edge of Lambs Lane.” Mr Freeman replied, “Quite possibly” (T 420.13-19).

62. [72]

    In cross examination, the plaintiff denied that she hit a windrow (T 238.46-49). She also denied on three occasions that she told Mr Freeman that she hit “the hard edge of the windrow” (T 239.2; T 248.5; T 251.30).

63. [73]

    The defendant also referred to what Dr Bentivoglio recorded in his medical report on 6 October 2015, where he stated, “[she] ran into a mound of dirt, probably two to three metres high”. According to the defendant, this entry helps to corroborate the history given to Mr Freeman, so that neither can be considered mis-recordings. The defendant submitted that each account corroborates the other in important respects. Both entries are consistent and point unequivocally to the height of a windrow, described by the plaintiff in her evidence as being half the height of a truck’s wheel.

64. [74]

    In Mason v Demasi [2009] NSWCA 227 (“Demasi”), the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts she gave to various health professionals, which appeared inconsistent with either each other, her oral testimony, or both. In Demasi, Basten JA stated at [2]:

65. [75]

    In my view, Mr Freeman’s evidence establishes several things. Firstly, he was not too worried about how the accident occurred, as his focus was upon the plaintiff’s psychological condition, diagnostics and treatment. Secondly, he was not sure what exactly she said; he stated that he did not know what a windrow was. Finally, it is quite possible that the plaintiff gave him her version of events.

66. [76]

    I accept Mr Freeman’s evidence and find it logical, considering he took the history while focusing upon the plaintiff’s psychological condition, rather than how the accident itself occurred. On the balance of probabilities, I make a finding that his recording of the accident is not accurate. Dr Bentivoglio was not cross examined on Mr Freeman’s recording of the accident in his medical report dated 6 October 2015. In any event, Dr Bentivoglio’s recorded version of events differs from the version recorded by Mr Freeman. As they were each made nearly two and half years after the accident, they are nowhere near as reliable as the contemporaneous records referred to earlier in this judgment.

67. [77]

    The defendant also drew attention to the plaintiff’s evidence that she did not see what she hit (T 24.18). She said, “[I] hit something that I knew wasn’t a rock.”

68. [78]

    However, it is important to consider this statement in context. The exchange that occurred is as follows (T 24.8-35):

69. [79]

    The defendant referred to the plaintiff’s statement that as she drove the grader, she moved it closer to the left-hand windrow. At that point, the plaintiff was looking to the right up Red Rock Ramp, and not over her right shoulder. She agreed that when she checked her mirrors to see what was coming behind her, she did so only momentarily (T 238.14-40).

70. [80]

    The defendant asserted that the facts show that the plaintiff does not know what she struck. She did not see it. The defendant submitted that there is cogent evidence establishing that she hit a pile of dirt.

71. [81]

    The defendant further submitted that it is significant that the histories that the plaintiff gave to Mr Freeman and Dr Bentivoglio match instructions the plaintiff gave to her lawyers as to how the accident occurred. Paragraph [13] of the statement of claim was amended to delete the words, “a pile of dirt that had been left”, and replaced with the word, “lamination”. According to the defendant, the amendment reveals a belated recognition of the plaintiff’s collision with an earthen windrow. The plaintiff also gave instructions to the liability experts that the accident occurred as follows:

72. [82]

    I do not accept that the plaintiff gave this description to the experts. When David Cockburn and Jason Wagstaffe asked the plaintiff how the accident occurred, she informed them that when she was twisting in her seat to look for other vehicles in case she had to give way to them, she hit a lamination upon the road surface with her left-side rear wheels. She said it was night and she did not see the lamination. The plaintiff told the authors that the contact with the laminated road surface caused her seat to bottom out twice, jarring her back as both wheels interacted with the laminated road surface. The experts contemporaneously recorded the plaintiff’s statements via Dragon Dictate.

73. [83]

    There is a large body of evidence, most of it contemporaneous, that supports the plaintiff’s version of events (Ex B(i), page 57 [54]-[55]). For the reasons I set out previously, I accept her evidence.

74. [84]

    In summary, I make the following findings:

    1. (1)

       It was pitch black. There was no lighting in the area. The headlights on the grader were on.

    2. (2)

       At about 8.00 pm on 6 March 2013, the plaintiff was driving a grader upon Lambs Lane. As the she approached the intersection with Red Rock Ramp, she drove her grader to the left-hand side of Lambs Lane and twisted in her seat to look over her right shoulder for larger vehicles approaching from behind. She had been trained to move to the left and to give way to all larger vehicles when approaching intersections of roads within the coal mine.

    3. (3)

       While the plaintiff continued to drive in this twisted manner, the left rear wheel of the grader struck a lamination on the left edge of Lambs Lane. As a result of striking the lamination, the plaintiff was jolted violently in her seat, causing her to suffer injury to her back and right hip.

Liability

1. [85]

   Liability is to be determined in accordance with common law principles and not the Civil Liability Act 2002 (NSW). This follows from s 3B(1)(f) of the Civil Liability Act, which relevantly reads:

2. [86]

   Part 1B of the Civil Liability Act is not relevant in the present case.

3. [87]

   Liability in this case relates to an award of damages sought under Pt 5 Div 3 of the Workers Compensation Act 1987 (NSW).

4. [88]

   This approach is consistent with authorities including Rail Corporation New South Wales v Donald [2018] NSWCA 82 at [7] (Beazley ACJ, McColl and Meagher JJA agreeing).

5. [89]

   An employer owes a personal, non-delegable duty of care to its employees requiring that reasonable care be taken for their safety.

6. [90]

   In O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229, the High Court noted that there was imposed upon every employer, a duty to take reasonable care for the safety for employees:

7. [91]

   In addition, the nature of the duty of care owed by an employer to an employee was explained by the High Court in Czatyrko v Edith Cowan University (2005) 214 ALR 349; (2005) 79 ALJR 839 (per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) as follows at [12]:

8. [92]

   It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duly is owed. The degree or standard of care required varies with the risk involved: see Kondis v State Transport Authority (1984) 154 CLR 672.

9. [93]

   The plaintiff pleads that the defendant, as her employer, had an obligation to take reasonable care to avoid foreseeable risks of injury arising from her employment. The plaintiff further asserts that the defendant was required to take reasonable precautions to guard against the risk of the plaintiff suffering injury. It is the plaintiff’s case that the risk of a person, such as the plaintiff, suffering injury in the circumstances she encountered were foreseeable and not insignificant.

10. [94]

    The plaintiff pleads breach of duty and negligence, and provides numerous particulars (at ASC [15](a)-(z)). They read:

11. [95]

    The defendant denies negligence and breach of statutory duty, and pleads contributory negligence.

12. [96]

    It is convenient that I reproduce ss 18 to 20 of the Work Health and Safety Act 2011 (NSW) here.

13. [97]

    Section 18 of the Work Health and Safety Act sets out what is “reasonably practicable” to ensuring health and safety:

14. [98]

    Section 19 of the Work Health and Safety Act sets out the primary duties of an employer as follows:

15. [99]

    Section 20 of the Work Health and Safety Act sets out the duty of persons conducting businesses or undertakings involving management or control of workplaces:

16. [100]

    I have accepted the plaintiff’s version of events and set out my findings. In order for the plaintiff to establish that the defendant is liable, she needs to show:

17. [101]

    David Cockbain and Jason Wagstaffe, experts on occupational health and safety and risk management, prepared a joint experts’ report dated 28 March 2017 on behalf of the plaintiff (Ex B(i), page 40) and gave concurrent evidence. I accept their evidence.

18. [102]

    The following matters are essentially all established by the unchallenged expert evidence of Mr Cockbain and Mr Wagstaffe. In particular, they set out on pages 42-43 of their report (Ex B(i), pages 81-82) the simple steps that the defendant could have taken to make the area safe and avert the plaintiff’s injury.

19. [103]

    What kind of defect the plaintiff drove over with her grader–be it a pile of dirt, a hole or a lamination in the road—did not make any difference to the experts’ opinions. The experts addressed the motion of the grader as follows. The vehicle had a front and rear wheel. As the front of the grader traversed the defect and came down the other side, the movement initiated what the experts called the “first event”. Once the rear of the grader passed over the defect, the movement initiated a “second event”. Both events would cause the plaintiff’s seat to bottom out, and in between the events, the plaintiff would experience a great deal of shaking and jolting. In terms of the events themselves, the experts said there should only be two: the first and second (T 265.25-33). Whether the plaintiff was jolted up and down in her seat repeatedly, or whether the seat bottomed out twice, did not affect the experts’ ultimate decision (T 266.10-11). Further, the experts said it would not make any difference to their opinion whether the plaintiff was driving a Cat 24 or a Cat 16 grader (T 267.18).

20. [104]

    The experts were asked to answer the following questions (Ex B(i), pages 42-43):

21. [105]

    At [167] of their report (Ex B(i) pp 83-84), the authors set out seven factors which contributed to the plaintiff’s injury. They are:

22. [106]

    These matters are also established by the defendant’s own records, including its “Mine Inspection System”.

23. [107]

    In summary, I find that the risk of injury to the plaintiff was reasonably foreseeable for the following reasons. Firstly, because the defendant was aware that prior to 6 March 2013 there had been a lot of rain. Secondly, the defendant’s investigation report noted that “[t]he pit in general had just recovered from extensive wet weather” (Ex B(i), page 38). Thirdly, “some roads were still somewhat a little weather affected” (Ex B(i), page 38). Fourthly, the “roadway in the area was somewhat damaged due to recent wet weather” (Ex B(i), page 38). Fifthly, other operators using the area also failed to notice to hole in the road, and therefore the hazard remained. Sixthly, after the accident occurred, a grader was immediately called to fix the area.

24. [108]

    It is my view that it was clearly foreseeable that if the plaintiff was sent out to drive on such damaged roads in the dark, then then the type of incident that she suffered was likely to occur. Under these circumstances, I am satisfied that if the plaintiff carried out her supervisor’s instructions to drive a CAT 24 grader from Crib Hut 8 to the bottom of Snake Gully to grade drill patterns when the road was wet, dark and damaged, the risk that the grader would hit a lamination and cause the plaintiff injury was reasonably foreseeable.

25. [109]

    At [168], the experts set out the reasonable preventative measures that could and should have been implemented by the defendant, which would not have involved excessive expense in either their development or implementation. These measures included the following:

26. [110]

    In summary, I make the following findings: firstly, that any matter which was found during an inspection that could affect the safety of persons in the mine, and cannot be controlled, was to be barricaded and brought to the attention of persons working in the area; secondly, that the area could have been barricaded; thirdly, that persons working in the area could have been warned of the hazard; and finally, that artificial area lighting could have been provided at the intersection of Red Rock and Lambs Lane.

27. [111]

    All of these actions would have been reasonably practicable means of obviating the risk of injury to the plaintiff.

28. [112]

    The defendant showed a want of reasonable care for the plaintiff’s safety in failing to eliminate the risk in the following ways. Firstly, the defendant was clearly aware of the damage to haul roads in the pit due to recent wet weather. Secondly, although a reasonable inspection would have identified the damage encountered by the plaintiff, no such inspection was carried out. Thirdly, the area was not barricaded in accordance with mine policy. Finally, the plaintiff was not informed about the damaged area in accordance with mine policy. The defendant failed to implement any of these practicable means.

29. [113]

    As the plaintiff’s employer, the defendant had a duty of care to her as employee. It breached that duty of care. There were reasonable means that the defendant should have taken to avoid the risk of the plaintiff being injured. The defendant’s failure to implement those reasonable means caused the plaintiff to injure her back and right hip. Hence, I make a finding that the defendant was negligent.

Contributory negligence

1. [114]

   The defendant pleads contributory negligence, and submitted that this Court should make a finding of contributory negligence of 50%. The plaintiff submitted that this Court would not make a finding that there was any contributory negligence on her part.

2. [115]

   Section 151N(1) of the Workers Compensation Act 1987 (NSW) provides that the common law and enacted law regarding contributory negligence applies to an award of damages under the Workers Compensation Act, except as modified by s 151N. There are no relevant modifications by the section for the purposes of this case.

3. [116]

   The defendant pleads that the plaintiff failed to keep a proper lookout; failed to keep proper control of the vehicle in which she was travelling; failed to observe the road on which she was travelling; and failed to keep her vehicle off the pile of dirt (Defence to Amended Statement of Claim [4](a) to (d)).

4. [117]

   In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 429 at 494, the High Court determined that with regards to contributory negligence, the just and equitable apportionment of the liability ought be examined as follows:

5. [118]

   At common law, the plaintiff is guilty of contributory negligence when she exposes herself to a risk of injury that was foreseeable and may have been avoided through the exercise of her own reasonable care.

6. [119]

   The defendant submitted that in a single vehicle accident, the focus in apportioning liability should be on the plaintiff’s driving, as the surrounding physical conditions are static. The defendant submitted that the following evidence points to significant contributory negligence.

7. [120]

   First, the plaintiff was aware of the risk of injury in not driving safely. The plaintiff was aware that she was required to drive appropriately under the conditions.

8. [121]

   At the hearing of these proceedings, the plaintiff gave the following evidence (T 166.19-21; 167.1-4):

9. [122]

   The plaintiff understood that one of the irregularities in the road could have been a lamination. The plaintiff was aware that she needed to drive her vehicle to take into account the prevailing road conditions, and that she needed to reduce the speed of her vehicle to take into account road conditions that may adversely affect the safe operation of the vehicle.

10. [123]

    The plaintiff gave evidence that there could be corrugations in the road (T 167.22-23). She gave the following evidence (T 168.23-27; 169.5-9; 235.39-50):

11. [124]

    Secondly, the defendant submitted that on the plaintiff’s evidence, the impact with the lamination was such that the plaintiff was jolted in her seat five times in the cabin of her vehicle. That was something that she had not experienced before. The plaintiff gave what the defendant described as “somewhat fanciful” evidence that she could drive over a rock the size of a mini minor and not feel the impact. If that evidence was truthful (and the defendant suggested that it is an example of exaggeration that affects the plaintiff’s credibility), then the lamination must have been a huge defect in the roadway. The defendant submitted that the only possible explanation for not seeing such a defect in the roadway must be that the plaintiff was not keeping a proper lookout. Originally, the plaintiff attempted to explain the collision by suggesting that she was at all times looking over her right shoulder. However, the plaintiff’s evidence was that her attention was really directed to her left and right as she approached the intersection that she wanted to proceed through. Assuming the plaintiff’s evidence that there was a defect upon the road surface is accepted, she drove into and over it without seeing it.

12. [125]

    The plaintiff gave the following evidence (T 244.1-7):

13. [126]

    The plaintiff also gave the following evidence (T 248.17-21):

14. [127]

    And at (T 249.30-50):

15. [128]

    According to the defendant, if this was a motor accident case, a finding of negligence in such circumstances would be irresistible. There is no reason for such a finding not to be made in circumstances where the plaintiff has sued her employer.

16. [129]

    Furthermore, the defendant submitted that the plaintiff was aware that the road surface may not be pristine by reason of the rain event that had caused the mine to close. One would readily expect in those circumstances that the plaintiff would exercise greater care in observing the very road surface that she intended to traverse. By failing to do so, she greatly contributed to her injuries.

17. [130]

    The plaintiff submitted that it was not put to her that she was not keeping a proper lookout for her own safety and that she was guilty of contributory negligence. Further, the defendant’s own records confirm that it was not only the plaintiff, but other plant operators who had not seen the lamination (Ex B(i), page 38).

18. [131]

    The plaintiff was driving slowly as she approached the intersection. She followed company procedures. At the time of the accident, the road was wet and its surface had been affected by rain in the proceeding several days. It was dark, as there was no illumination except for the headlights on the CAT 24. Because of the poor visibility, both she and other plant operators using the area had failed to notice the hole in the road. In my view, the plaintiff bears no culpability for the accident, as she did not depart from the standard of care of a reasonable person. As such, I do not apportion any contributory negligence.

The plaintiff’s health and employment after the accident

1. [132]

   After the accident, Christie Yueller drove the plaintiff to Aberdeen to see her general practitioner, Dr Ali. Dr Ali advised the plaintiff to take two weeks off work.

2. [133]

   On 26 March 2013, 20 days after the accident, the plaintiff returned to work on light duties. She was required to start work at 10.00 am. She was not given anything constructive to do because her pain was still so severe. The plaintiff had been prescribed OxyContin and Endone for pain relief, but was unable to take it while she was working, both because the medications affected her ability to drive to work and because the mines’ policy regarding drugs and alcohol meant that she would be prohibited from driving on the mine if she had taken any form of medication.

3. [134]

   On 22 April 2013, while driving to work, the plaintiff fell asleep and her car went off the road and into gravel. The sound of the gravel woke her and she regained control of the car. This episode frightened her and she booked the first available appointment to see Dr Ali.

4. [135]

   On 26 April 2013, the plaintiff saw Dr Ali. She told him about the severe pain she was experiencing. She explained that due to Mt Arthur’s drug and alcohol policy, she was unable to take medication at work and that caused her to have severe pain while she was there. Dr Ali certified her unfit for work.

5. [136]

   In November 2013, the plaintiff returned to work. Her WorkCover certificate restricted her hours for a month to working 3 hours a day 3 days a week. During this time, the plaintiff worked in the office assisting the production team.

6. [137]

   Over the next few months, her hours were gradually increased each month. She began working 4 hours a day, 3 days a week, then 5 hours a day, 3 days a week. In March 2014, the plaintiff’s hours increased to 8 hours a day, 3 days a week. As her hours increased, the plaintiff’s back became increasingly painful.

7. [138]

   Due to the pain in her back, the plaintiff was unable to work from 21 until 28 March 2014.

8. [139]

   On 29 March 2014, the plaintiff again returned to work. On 15 April 2014, she was working 5 hours a day, 4 days a week. On 29 April 2014, she began working 4 hours a day, 5 days a week. On 25 June 2014, she began working 6 hours a day, 4 days a week. On 22 July 2014, she began working 8 hours a day, 4 days a week. On 15 August 2014, she began working 9 hours a day, 4 days a week.

9. [140]

   By August 2014, the plaintiff began to leave the office and go out to the pit and into blast areas acting as a sentry for explosions. Her sentry duties usually took less than an hour. She performed these duties a couple of times per week as required. She also began working in the pit relieving the drill operators when they took brakes, which was referred to as “cribbing”. As a relief drill operator, the plaintiff would usually operate a drill for a period of approximately 1.5 hours, and could be asked to relieve between 1 to 3 operators on any given shift, depending on requirements. The role required her to assume control of the drill. The drill was operated via two handheld joysticks and consoles. As a drill operator, the plaintiff could chose to sit or stand whilst operating the drill, which allowed her to manage the required duties. The drill was mobile and the plaintiff was able to stand while driving the drill between individual points within the designated drill pattern.

10. [141]

    When the plaintiff was not acting as a sentry or being a relief drill operator, her duties included obtaining drill patterns and paperwork from the main building for the drill operators. Those tasks required her to drive a light vehicle around the pit delivering the drill patterns and paperwork to the operators.

11. [142]

    The plaintiff continued to work outside in the pit until early December 2014. In early December 2014, she was performing duties as a relief drill operator. The plaintiff received a telephone call from the mine superintendent, Mr Jeff Hanlin. They had a conversation to the following effect:

12. [143]

    After the plaintiff had completed the crib, she drove a light vehicle back into “town”, the area of the mine where the offices were located, and attended the meeting with Mr Fotheringham. In addition to Mr Fotheringham, two other people were present: Dave Ellem, the union delegate, and Michelle Johnson, the back to work officer. They had a conversation to the following effect:

13. [144]

    The plaintiff says that at this point in the conversation, she became upset and emotional.

14. [145]

    “Enviros” was a reference to the Environmental Department of the mine, and the plaintiff understood Mr Fotheringham to be referring to work in the environmental team. The plaintiff became extremely worried and upset about the prospect of losing her current role at the mine, which she loved. The plaintiff regarded herself as a mother figure to the drill team.

15. [146]

    From the time of her conversation with Mr Fotheringham, Mr Ellem and Ms Johnson until Christmas Eve 2014, the plaintiff drove soil samples from Mt Arthur to Gundy, drove environmental department officers around the pit and rewrote the health and safety procedure list. After December 2014, she no longer worked in the pit.

16. [147]

    From 26 January 2015, the plaintiff sat in the crib room for 9 hours a day, 4 days a week. She says she walked around and asked people from the environmental department, the health and safety department, the geo-tech and geology department, the production department and the engineering department if they had work for her, but they rarely did.

17. [148]

    By January/February 2015, the plaintiff had begun to experience increased pain in her back, right hip and right leg. She was also feeling emotionally distressed because of her new position at work. On 16 February 2015, the plaintiff had an appointment with Dr Meeran, where she told him she was not coping with being cooped up in the crib room for hours at a time with nothing productive to do. Dr Meeran reduced the plaintiff’s suitable duty certificate from 9 hours to 6 hours per day, 4 days per week.

18. [149]

    On 19 February 2015, the plaintiff attended a meeting. Present at the meeting were union representative Jeff Dayton, Ms Johnson, superintendent Jeff Hanlin and a rehab management acting on behalf of coal mine insurance, Jo Lockhart. The plaintiff understood that Ms Lockhart was the mines rehabilitation manager. The plaintiff recalls that Ms Lockhart told her, “We are here to discuss what is going to happen for Gemma’s future.”

19. [150]

    The plaintiff did not understand what that meant and said so. Mr Hanlin then said words to the following effect:

20. [151]

    The plaintiff was devastated. She made an appointment to see Dr Merran, which Ms Lockhart attended. The plaintiff asked Dr Meeran if she could be certified as fit for pre-injury duties, but Dr Meeran said no.

21. [152]

    Upon this news, Kelly Bromfield informed the plaintiff that she was not to come back in to work until her medical certificate said that she could work pre-injury duties. The plaintiff has not returned to work since.

22. [153]

    On 9 May 2016, the plaintiff was terminated. She was informed that there were no more suitable duties available for her.

23. [154]

    The plaintiff says that since the accident, she has experienced constant pain in her back. She says that her right leg and right foot often go numb, particularly after she has been sitting. She finds that she cannot sit straight in a chair and needs to lean on her left side to avoid putting too much weight on her right buttock. If she has to sit straight, her right foot quickly goes numb. Her pain was initially in the lower left part of her back, but has now radiated to the lower right part of her back.

24. [155]

    She says that there was no significant event that caused the pain to shift from the left side of her back to the right side. She just woke up one morning in mid-2014 and her lower right back was painful.

25. [156]

    Since the plaintiff swore her evidentiary statement on 22 May 2018, her back pain and right leg pain have increased and her condition has deteriorated. Her right leg muscles have reduced in size.

26. [157]

    She says she is more cautious when she stands up from a seated position. When the plaintiff stands up she needs to feel “balanced”, and makes sure she has feeling in her right foot before she begins to walk.

27. [158]

    Since approximately 2017, despite being more cautious, the plaintiff has suffered a number of falls due her right foot going numb. She says that when she cannot feel her leg as she walks, her balance is affected and she can fall over.

28. [159]

    On 31 October 2018, the plaintiff had weight loss surgery to see if weight loss would reduce the pressure and pain she was feeling in her back. Although she has lost more than 30 kilograms, she says that the weight loss has not helped her back pain.

29. [160]

    Not long after the plaintiff was injured, she was sent to see an orthopaedic surgeon, Dr Ghabrial. Dr Ghabrial administered cortisone injections into her lumbar spine. The plaintiff was not under general anesthetic during the procedure and she says it was very painful. She could not walk to the car afterwards and had to be assisted by her mother and a nurse.

30. [161]

    In January or February 2014, the plaintiff first saw Sarah Key, physiotherapist, at Fernleigh for her “Back in a Week”. The plaintiff felt that her treatment with Ms Key relieved a lot of pressure in her back. The plaintiff saw Ms Key 4 times, most recently in January 2015. Between July 2014 and November 2014, the plaintiff attended “Back Fit” at Muswellbrook Gym to treat her back.

31. [162]

    The plaintiff has also seen Dr John Prickett for pain management. In March 2015, Dr Prickett administered a steroid injection which initially improved her pain symptoms, although they have returned over time.

32. [163]

    The plaintiff also consulted Dr Richard Ferch regarding the possibility of having surgery to fix her back issues. Dr Ferch was of the view that micro-discectomy surgery at the L5/S1 level could improve her condition. The plaintiff was happy to try conservative treatment options such as the steroid injections before opting for surgery, although eventually the pain returned.

33. [164]

    In July 2015, the plaintiff was referred to Warren Freeman, psychologist. On 19 July 2015, the plaintiff saw Mr Freeman. I have referred to his evidence earlier in this judgment.

34. [165]

    The plaintiff attended her general practitioner, Dr Meeran, each month to obtain her WorkCover certificate. Dr Meeran manages her pain and anxiety/depression medication.

35. [166]

    Since the plaintiff swore her evidentiary statement on 22 May 2018, there has been no change to her treatment. She continues to see Mr Freeman fortnightly and Dr Meeran monthly.

36. [167]

    The plaintiff says that her mental state suffered significantly due to the period of time she was confined to the office without meaningful work duties from December 2014 until 19 February 2015.

37. [168]

    During this time, she was questioned by other staff members as to why she was not working full duties. She had no room to do work and was not given a desk. The plaintiff was continually asking anyone and everyone if they had any work for her during this time.

38. [169]

    Many workers who came into the crib room for lunch would ask the plaintiff why she was just sitting there and not doing anything meaningful. She says they made comments such as the following:

39. [170]

    The plaintiff says that the constant questioning by her peers made her feel worthless and useless.

40. [171]

    The plaintiff suffered a number of panic attacks when she was working on light duties. Her most severe panic attack was on Monday, 2 February 2015. She was so distressed that she had to sit in her car because she felt like she had nowhere to hide in the crib room.

41. [172]

    The plaintiff says that a combination of sitting in the crib room with no work, being treated poorly by fellow staff members and being directed by Mr Fotheringham to change her medical certificate all caused her severe stress. It was these circumstances that caused her to suffer a series of panic attacks, feeling nervous, confused, degraded, angry, anxious and depressed.

42. [173]

    She says that she struggles to leave the house on a daily basis and dislikes going into public areas. She gets easily anxious and stressed.

43. [174]

    The plaintiff has had depression since her husband died in 2008, but she says the depression worsened after her poor treatment at work. She never used to suffer anxiety or panic attacks. She also developed anger issues, and now gets easily frustrated or annoyed by small things that never used to bother her. The plaintiff has found Mr Freeman’s treatment helpful, and is now not as prone to panic attacks.

44. [175]

    The plaintiff says that she has also noticed that she lacks energy and enthusiasm in all parts of her life. She feels absolutely worthless most days, and needs to push herself to do the simplest tasks. She repeats affirmations to herself in the mirror every morning to try to make herself feel better about herself and to convince herself that her life is worthwhile. She mediates every day for between 15 and 20 minutes.

45. [176]

    It is appropriate that I now record my observations of the plaintiff’s activities when she was unknowingly under video surveillance. At trial, this Court, the legal representatives of the parties and the plaintiff viewed 10 hours of video surveillance (Ex 9 – USB). I have not covered all of it in my judgment, but concentrated on the more significant parts.

46. [177]

    A video taken on 4 September 2014 shows the plaintiff as she emerged from the Mercure Hotel. She stood outside, smoked a cigarette and used her mobile phone. The plaintiff was standing and not using any structure to support herself. The film showed the plaintiff walking with a limp to the inside of the hotel.

47. [178]

    The plaintiff departed the hotel in her Toyota Prado at 10.05 am. At 11.35 am, she stopped at the Twin Service Stations at Wyong and went to McDonalds. At 11.52 am, the plaintiff departed the Twin Service Stations and continued to drive in the direction of Aberdeen.

48. [179]

    Another video taken on 27 August 2015 shows the plaintiff as she attended an appointment with Dr Millons in Newcastle. She had driven 1 hour and 20 minutes from Aberdeen. On viewing the video, the plaintiff observed that she walked with a limp or funny gait, used handrails for support and appeared stiff when she went to sit down or stand up. My observation is that the plaintiff was able to walk briskly, but with a limp.

49. [180]

    After that appointment, the plaintiff and her mother are seen seated outside in a café. The plaintiff then drove in a Toyota Landcruiser back to Wallsend, where she and her mother stopped off at the Wallsend shopping centre and attended the food court. The video shows the plaintiff seated and talking on her mobile for 11 minutes. She is seen walking outside past a building while smoking a cigarette, standing and using her telephone and walking up stairs with a limp. She held the hand rail with her other hand for support.

50. [181]

    On the video, the plaintiff then drove 1 hour and 20 minutes to Aberdeen. When watching herself on the video getting in and out of the car at Aberdeen, the plaintiff observed that she got out very gingerly because she was stiff and in pain from the drive. She also observed that she needed to hold onto the door for stability, and that she shook her legs to make sure that she could feel her foot before she walked off. The plaintiff says that when she travels, she always adjusts her seated posture to try and take the pressure off her back.

51. [182]

    In a video taken in September 2015, the plaintiff is shown wearing her work gear. At the time she was still officially employed, and had been sent to see a psychiatrist for Mt Arthur. She wore her work vest, long sleeved shirt, jeans and work boots.

52. [183]

    The plaintiff was observed standing outside the King Cross Hotel, smoking a cigarette and speaking on her mobile phone. She was standing upright. The plaintiff and two men returned inside to a table, where she sat on a bar stool and consumed alcohol, smoked, talked and laughed. After having been seated for 6 minutes, the plaintiff stood for 29 minutes without assistance or support.

53. [184]

    In a video taken on 5 October 2017, the plaintiff left her home at Aberdeen and drove from 4.22 pm to 4.32 pm to the offices of Morgan and English Lawyers. She departed the lawyers’ offices at 5.27 pm.

54. [185]

    On 7 October 2017, the plaintiff is shown leaving her home at 10.14 am with other occupants and driving to Scone, arriving at 10.26 am. She can be observed getting out of her 4 wheel drive and walking towards a hair salon.

55. [186]

    On 12 October 2017, the plaintiff is shown at 12.58 pm as she left Wentworth Chambers, Sydney. She walked down the steps and stood on the footpath while having a conversation. She then stood near a pole outside Wentworth Chambers, not leaning on it. The plaintiff then walked down Martin Place, where she examined a handbag. She was seen talking in Pitt Street Mall and then walking into the Strand Arcade, where she had lunch at a café while seated on a wooden chair. After lunch, the plaintiff walked through the Strand Arcade and shopped at H&M. The plaintiff then walked along Pitt Street Mall in Market Street where she caught a taxi to the Holiday Inn Hotel at the Rocks. She alighted from the taxi, smoked a cigarette and entered the hotel. The footage ends at 2.32 pm.

56. [187]

    On 13 October 2017, the plaintiff is shown at 7.55 am standing outside of the Holiday Inn, smoking. She walked off with a limp at 7.59 am.

57. [188]

    On 6 October 2017, the plaintiff is shown driving from her home to Scone, where she entered a Woolworths Supermarket. She pushed a shopping trolley through the fresh food section. She then unloaded the shopping trolley into the rear side passenger door of her vehicle. She returned the shopping trolley and drove off.

58. [189]

    Having watched these videos at trial, the plaintiff was asked, “What we see in the film that you were shown over so many minutes and perhaps hours in the last couple of days, are snapshots of your life, when you did not believe you were being filmed. That’s so, isn’t it?” She answered that she did not know that she was being filmed. However, she agreed that the videos showed snapshots of her activities (T 295.35-41).

59. [190]

    I will now record my findings in relation to the plaintiff’s video surveillance. I observed the plaintiff carefully while she gave evidence and was cross examined at length. I have accepted her evidence on liability as being truthful.

60. [191]

    So far as damages are concerned, I have reluctantly formed the view that when the plaintiff gave evidence as to her disabilities, she exaggerated them. When she was giving evidence in the witness box, the plaintiff frequently grimaced, winced and sighed, giving the impression that she was consistently in severe pain. She changed position from sitting to standing from time to time, which I accept was because of her genuine discomfort. However, the video surveillance shows that she is capable of doing more than she says she can.

61. [192]

    There is no doubt that the plaintiff walks with a right-side limp. At times it is marked, and at other times slight. This no doubt depends on a number of factors. I observed in the video surveillance that when the plaintiff was going up and down flights of stairs, she supports herself by placing a hand on the handrail.

62. [193]

    I accept that the plaintiff finds it is easier to exit than to enter a car, because she can slide out. I accept that she has trouble getting in and out of sedans because they are lower the movement causes her pain. She walks with a consistent limp. At the supermarket when purchasing a number of items of shopping, the video surveillance shows the plaintiff using a trolley. I accept that she always tries to use a trolley to lean on and balance with her legs, and that she also tries to use a higher trolley so she does not need to lean in to place or retrieve items, as bending in that fashion causes pain in her back. She also uses multiple bags, placing small numbers of items into each so she is not lifting heavy weights.

63. [194]

    Of more significance is that she holds a most definite and unshakeable view that she is unable to carry out any paid employment. I will address her disabilities in more detail after I have taken into account the medico legal assessments.

Medico legal assessments

1. [195]

   As part of the plaintiff’s claim for workers compensation and damages, she has been assessed by 3 orthopaedic surgeons, 3 psychiatrists, 2 psychologists and 2 occupational therapists. I will refer to the occupational therapists’ reports later in this judgment under the heading “Past and future care”.

2. [196]

   Dr Bentivoglio, orthopaedic surgeon, wrote two reports dated 6 October 2015 and 9 March 2016. In both reports, Dr Bentivoglio was asked similar questions and gave expectedly similar answers. Dr Bentivoglio opined that the plaintiff’s only work-related abnormality is discal damage at the L5/S1 of her lumbar spine on the right-hand side. The plaintiff’s duties operating loaders, dozers, excavators and shovels required her to remain seated for prolonged periods of time. Dr Bentivoglio considered that remaining in one position for prolonged periods of time, as is required for all driving duties, would cause the plaintiff’s back symptoms to be aggravated. The machines’ constant vibrations would also aggravate her complaints.

3. [197]

   Dr Bentivoglio opined that the plaintiff should not be required to remain in one position for more than 50% of the time. She should be able to get up and move around on a regular basis. She should avoid bending, twisting and jarring movements of her back. She also needs to avoid repetitively lifting objects of 5 kilograms or more. Dr Bentivoglio considered that as long as selective duties were made available to the plaintiff so that she could get up and move on a regular basis, and so that she did not have to bend and twist her back or repetitively lift objects of 5 kilograms or more, the plaintiff could cope with full-time employment.

4. [198]

   Dr Bentivoglio was not required for cross examination, nor did he participate in writing the joint report or giving concurrent evidence. Because Dr Bentivoglio’s opinion differs from those of Drs Hopcroft and Millons, and he was unable to be tested by participation with his peers in writing a joint report and giving concurrent evidence, I prefer the views of Drs Hopcroft and Millons. However, I note that Drs Hopcroft and Millons do not agree on issues surrounding the plaintiff’s capacity to work after the accident and the causation for her hip replacement surgery. I will deal with these disputed issues later in this judgment.

5. [199]

   Dr A G Hopcroft prepared reports dated 18 November 2015 and 16 March 2018. Dr D Millons prepared reports dated 13 June 2013, 24 October 2014, 19 November 2014, 27 August 2015, 29 June 2016 and 22 August 2018. Both doctors prepared a joint report dated 26 March 2019 (Ex 1).

6. [200]

   Dr Hopcroft opines that the plaintiff is totally unfit to return to mining duties (Hopcroft, 16 March 2018). Dr Millons does not agree. It is his opinion that the plaintiff has a capacity to work in a semi-sedentary situation. According to Dr Millons, the plaintiff should have no difficulty working in an office environment for 4 hours a day, so long as she avoids excessive bending, lifting more than 5 kilos, or working in awkward or confined spaces. He predicted that through treatment and work hardening, the plaintiff ought to be able to increase her hours over a couple of months, particularly if no problem was identified on the proposed updated investigations (Millons 13 June 2013).

7. [201]

   In his report dated 24 October 2014 (CB, page 437), Dr Millons noted that the plaintiff currently complains of pain in the lower back spreading through the right lower limb to the foot. The source of the pain was not clear to Dr Millons. He thought that there was every indication for the plaintiff to have an updated MRI to see if there had been any significant change in the findings at L5/S1, as it had been 15 months since her last one. He noted that the plaintiff was back working on the drills, although only working 9 hour shifts for 4 days a week. Although she was working fewer hours than she did before, Dr Millons felt that this was probably a reasonable compromise. Dr Millons was of the view that at that time of his report, the plaintiff was fit to work on the drills at her current level, but it would be reasonable to keep her away from her former duties until the plaintiff had undergone some further investigations of her back and hips. He stated that she should avoid work that entails a lot of bending, lifting or working in awkward or confined spaces. She seemed to cope reasonably well on the drills, where she could sit or stand.

8. [202]

   In his third report, dated 19 November 2014 (CB, page 446), Dr Millons still stated that he believed that the plaintiff was fit to work on the drills, but he doubted whether she would be able to raise her hours much beyond their current level of 9 hours a shift, 4 days a week. She should avoid any work that entailed a lot of bending, lifting more than 10 kilos or working in awkward or confined spaces. Rather than put a series of unnecessary restrictions on her, Dr Millons was of the view that it would be better for her to arrive at a working life with which she felt comfortable. He stated that the plaintiff seemed to have done that quite well.

9. [203]

   In his report dated 27 August 2015 (CB, page 451), Dr Millons reported that the plaintiff’s current situation had taken a turn for the worse. She had persistent numbing pain in her lower back, which radiated into the right buttock down the side of the calf to the top of the right foot. She could only sit for half an hour before she had to change her position. Standing in one spot was aggravating, and she found bending and lifting difficult. She could walk very far before her pain increased. She said she was woken by pain in the night.

10. [204]

    Dr Millons reported that the plaintiff had to get up in the morning to get her two children, aged 15 and 12 years, ready for school. She told Dr Millons that she usually rested in the daytime, and did not go out of the house very often. She had found the drive to visit Dr Millons difficult. She said she always took someone with her to go shopping to help carry the bags. She did a little cooking at home, and required her children’s help with the housework and gardening. Her son mowed the lawn. Friends also called around from time to time to assist, and her mother and father lived close by and were a support to her. She was very distressed about her lot in life and told Dr Millons that she just wanted to work hard at her former position in the industry. She appeared not to have accepted that that was not possible.

11. [205]

    Nevertheless, Dr Millons opined that in relation to her back injury only, from an orthopaedic point of view, the plaintiff should have capacity to work in an office based environment for 6 hours a day, 4 days a week (my emphasis added). She seemed averse to the idea of doing any office work. He noted that the plaintiff’s prior working life of 9 hours a day, 4 days a week was probably not an option moving forward due to the deterioration in her general condition.

12. [206]

    Drs Millons and Hopcroft prepared a joint report dated 26 March 2019 (Ex 1) and gave concurrent evidence. Both experts viewed the video surveillance of the plaintiff (T 91) after they had written their joint report, but before they gave conclave evidence. Dr Hopcroft observed that on 4 September 2015, the plaintiff was walking with a “marked” right sided limp, whereas Dr Millons described the limp as “slight” (T 47-50). Dr Hopcroft said that on 6 October 2017, the plaintiff can be seen walking with a slight limp favouring her right leg. Dr Millons observed that the limp was not consistent, and described it as a “variable” but “recurrent”. He explained that it could be caused by problems with the back, or with nerve pain in the leg. It could also come from an osteoarthritic hip such as the plaintiff’s. If a person with an arthritic hip has been sitting for awhile and then stands, they may be stiff before walking it out. The person may limp for a while after sitting, after which the limp is less obvious (T 95.28-32).

13. [207]

    Dr Millons thought that the plaintiff somewhat exaggerated and overstated her symptoms (T 98.6-7). Dr Hopcroft disagreed. His opinion was that the limping seen in the video footage could be consistent with the plaintiff’s hip pathology (T 98.15-19). Dr Hopcroft added that the limp could aggravate the osteoarthritis in the hip. As such, if the plaintiff had not had the injury in April, she may not have needed the right hip joint replacement. He explained that a recognisable component of her need for surgery on the hip was because the limp came from the disc protrusion (T 99.26-31). Dr Millons agreed that the plaintiff has osteoarthritis of the hip and that the condition can be aggravated by an altered gait pattern. He stated that it is a progressive condition which will require a hip replacement at some state (T 99.41-43). It is Dr Hopcroft’s opinion that the injury has accelerated the plaintiff’s hip condition, whereas Dr Millons says that it may only possibly have done so.

14. [208]

    Drs Millons and Hopcroft agree that the plaintiff presently suffers from lumbar spondylosis with a superimposed L5/S1 inter-vertebral disc lesion toward the right, and osteoarthritis of the right hip. They stated that an intervertebral disc lesion caused right sciatica and deterioration in the plaintiff’s right hip function. They also agreed that the impact of the plaintiff’s work injury on her capacity to seek, obtain and retain work in the past was that she had difficulty performing ongoing work, which aggravated the symptoms on her back and her hip. Drs Millons and Hopcroft stated that clinicians must be wary of further aggravation of the disc protrusion and arthritis of her hip.

15. [209]

    Based on their examinations of the plaintiff, both doctors were of the opinion that the plaintiff was significantly restricted in any future work activities by the risk and probability of increasing the protrusion of the L5/S1 disc, and the aggravation of the arthritis of her hip. If the injury had not occurred, the plaintiff’s most likely circumstances given the state of her pre-existing degenerative spinal condition was that she would have suffered a slower deterioration of spondylosis and her hip arthritis, the combination of which would have allowed her to work for only another 10 years. There was a pre-existing lumbar spondylosis without disc protrusion and osteoarthritis of the left hip. They opined that the plaintiff’s prognosis was poor, with a maximum of 10 years to work—that is, until September 2029—even if all precautions were taken.

16. [210]

    They agreed that the plaintiff would have benefited from hydrotherapy, physiotherapy, weight reduction and cessation of smoking. They assessed the plaintiff’s likely future treatment needs as being ongoing hydrotherapy, the cost of which is approximately $500.00 per year. They stated that she also needs self-managed physiotherapy and weight reduction, including bariatric surgery. So far as the plaintiff’s future treatment needs are concerned in light of the pre-existing degenerative changes in the plaintiff’s spine, the orthopaedic surgeons agreed that with ideal medical management, she should have had planned hydrotherapy, weight reduction and education in self-physiotherapy. Both her back and right hip conditions are progressive. As such, in the future she may face a right total hip replacement to improve pain levels, but she is not a candidate for neurosurgery on the L5/S1 disc protrusion. However, since the joint report was written, the plaintiff has lost 36 kilograms, which is a significant weight loss. Both doctors agreed that losing 36 kilos will take a lot of load off the plaintiff’s back and hips, and may decrease her symptoms of pain. However, as she already suffered a significant disc protrusion, losing weight would not be able to alleviate that condition whatsoever (T 113.6-22).

17. [211]

    According to both doctors, the plaintiff required domestic care of 3 to 4 hours per week for lifting, high cleaning and garden maintenance, but she did not require personal care and assistance. This evidence on the topic of domestic care needs to be considered in the light of the occupational therapists’ evidence later in this judgment.

18. [212]

    Dr Samson F Roberts (“Dr Roberts”) wrote two reports dated 15 October 2015 and 1 March 2017 (Ex B(ii), pages 349-382). Dr John Albert Roberts (“Dr J A Roberts”) wrote a report dated 8 September 2015 on behalf of the defendant. This report was not served. Dr Roberts was not required for cross examination, and his opinions are unchallenged. They accord with the plaintiff’s evidence, and I accept his evidence.

19. [213]

    Dr Roberts reported that the history provided to him by the plaintiff reflects the presence of a major depressive disorder and a panic disorder. Dr Roberts was of the opinion that given the plaintiff’s state of mind, she was currently unfit for work in any capacity. Her emotional fragility and altered interpersonal functioning would compromise her participation in the workforce. The conditions she suffered could compromise memory and concentration. As such, independent of any physical restrictions, the plaintiff was unfit for work.

20. [214]

    Solely from a psychiatric perspective, Dr Roberts’ opinion was that the plaintiff would also be comprised in her ability to consistently and reliably maintain the household to the standard of a psychiatrically well person. However, he says that at this stage it would be premature to consider that she has achieved maximum medical improvement.

21. [215]

    In his further report of 1 March 2017, Dr Roberts recorded that the plaintiff’s condition had persisted despite regular psychological therapy and compliance with pharmacological treatment. She remained significantly compromised in her ability to function in her remaining roles as homemaker and parent.

22. [216]

    He stated that it was her forced removal from active participation in work at the mine that precipitated her psychiatric decline, compounded by the attitude of colleagues and management towards her. He considered her psychiatric injury was casually linked to the nature and conditions of her workplace.

23. [217]

    Dr Roberts was of the opinion that, having regard to the nature and severity of the plaintiff’s psychiatric conditions, she is compromised to such an extent that even if her physical limitations were to fully resolve, she would remain profoundly impaired. Her diminished motivation, low energy and disturbed sleep would persist at a level that undermines her ability to adequately participate in household and parenting duties. Dr Roberts expected the plaintiff to continue to require the support of family and friends for at least one hour per day. Her combination of physical and psychiatric impairment will require a significantly greater level of domestic support.

24. [218]

    Sebastian Bass and Mark Ravagnani, psychologists, prepared reports dated 9 August 2017 and 7 February 2018. They also prepared a joint report dated 19 March 2019 (Ex 4). They were not required to give concurrent evidence. Their report is as follows:

Assessment of damages

1. [219]

   An assessment of damages is to be done in accordance with the provisions of Part 2 of the Civil Liability Act. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.

2. [220]

   Damages are awarded as compensation for the damage suffered. It is accepted, and clearly understood, that it is impossible to use money to restore to a condition of physical wholeness a person who has suffered great personal injury. All the law can do is to restore the person who has suffered so far as money can do.

3. [221]

   Damages cannot be perfect. In Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14:

4. [222]

   Damages are not intended to insure the plaintiff against every possible eventuality, or to compensate for every loss the plaintiff may possibly have sustained: see Pamment v Pawelski [1949] HCA 43; (1949) 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 562 (“Sharman”) at 585 per Gibbs and Stephen JJ.

5. [223]

   Actual loss must be determined, but determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665 at 676.

6. [224]

   The plaintiff was born in 1972. She was 41 years old at the date of injury and is now 47 years old. She has a life expectancy of a further 41.5 years.

7. [225]

   The plaintiff submitted that she should be assessed at 55% of “a most extreme case”, entitling her to $209,962.50: see Dell v Dalton (1991) 23 NSWLR 528.

8. [226]

   The defendant does not dispute that the plaintiff is entitled to an award for non-economic loss. However, the defendant submitted that the plaintiff’s non-economic loss damages compared to a most extreme case should be assessed at no greater than 25%, which equates to $95,438.

9. [227]

   The plaintiff is a “coal miner” as defined in cl 3 of Pt 18 of Sch 6 to the Workers Compensation Act. As such, her award of damages for non-economic loss is governed by s 151G of the Act in the form it was before the 2001 amendments. Prior to the 2001 amendments, ss 151G and 151H apply in respect of both non-economic and economic loss, and are as follows.

10. [228]

    Non-economic loss includes pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.

11. [229]

    Section 151G of the Workers Compensation Act provided:

12. [230]

    The relevant indexed amounts corresponding to $204,000, $36,000 and $48,000 in that section, at 6 March 2013, were $381,750, $67,800 and $89,050, respectively.

13. [231]

    An award of damages in respect of an injury to a worker caused by the negligence or other tort of her employer are governed by the provisions of Division 3 Part 5 of the Workers Compensation Act.

14. [232]

    In Hann v Clarence Colliery [2012] NSWSC 475, Hulme J addressed the exercise required to be undertaken under s 151G of the Workers Compensation Act at [91]-[92]:

15. [233]

    By operation of s 151G(8), awarding damages for the purposes of 151G and 151H requires a consideration of the relevant date of injury.

16. [234]

    On 6 March 2013, the date of the plaintiff’s injury, the maximum award under s 151G was $381,750.

17. [235]

    As an award for non-economic loss damages is one for both past and future pain and suffering, the plaintiff’s age is a relevant consideration.

18. [236]

    The plaintiff submitted that before her injury, her life was full. She had no restrictions upon her ability to work in a demanding job as a production employee, performing 12-hour shifts on a rotating roster and caring for two teenage children as a widow. She was able to maintain a large domestic house and garden. Aside from a short-lived episode of depression after the death of her husband in 2008, the plaintiff had experienced no psychological impairment of function or capacity to undertake the usual range of work, social and domestic activities.

19. [237]

    Every aspect of the plaintiff’s life has been affected by the accident. Her life now marked by significant back and right hip/leg pain. She has also experienced substantial psychological trauma, and her ability to perform the entire range of pre-accident activities of daily living has been curtailed or destroyed outright.

20. [238]

    As the plaintiff is entitled to damages for pain and suffering in respect of her injury, a further relevant consideration is the extent to which she would already have suffered from disability from her pre-existing medical conditions.

21. [239]

    The unanimous medical evidence is that the plaintiff had significant pre­ existing degenerative changes in her lumbar spine, as well as advanced osteoarthritis in her right hip (and to a lesser extent in her left hip). The orthopaedic surgeons in conclave agreed with the following propositions:

22. [240]

    The defendant submitted that these matters should affect the plaintiff’s award for non-economic loss.

23. [241]

    The plaintiff was 40 years old at the time of the accident. She is now 47. I accept that the plaintiff is entitled to pain and suffering in respect of the injury sustained in the accident. It is also relevant to consider the extent to which the plaintiff would have suffered from disability in any event from any pre-existing medical conditions. While the plaintiff had pre-existing osteoarthritis in the right hip prior to the accident, it was asymptomatic. It is a progressive condition that the doctors agree would have resulted in a hip replacement at some stage. She also had pre-existing degenerative changes in her lumbar spine. She has lost a significant amount of weight in the last few years.

24. [242]

    Prior to the accident, the plaintiff had a full and enjoyable life. She had no restrictions upon her ability to work in her demanding job while caring for her two teenage children. She was able to maintain her home and garden. She experienced no psychological impairment of function or capacity, outside of a brief period after her husband’s death in 2008. She enjoyed her work at the mine and the company of her co-workers. She is, on any view, no longer capable of working as a production employee at the mine for a period exceeding 10 years.

25. [243]

    The accident dramatically changed the plaintiff’s life, which is now marked by significant back and right hip/leg pain. She has also experienced substantial psychological trauma, which affects her ability to perform the entire range of pre-accident activities of daily living. She walks with a limp, which varies in severity. From time to time she uses a walking stick. On bad days, she stays in bed due to her physical and psychiatric injuries. Her life is now somewhat isolated, although the video surveillance shows she is able from time to time to go out and do her shopping, socialise over lunch and occasionally engage with friends in the evenings. She was observed having frequent animated conversations on her mobile phone, although I do not suggest she is not without some level of pain when socialising.

26. [244]

    Taking all of these factors into account, I assess the plaintiff’s non-economic loss at 45% of a most extreme case. 45% of $381,750 equates to $171,787.50.

27. [245]

    Under the pre-amendment version of the Workers Compensation Act relevant to the plaintiff at the time of her injury, a worker must suffer a “serious injury” in order to be entitled to damages for economic loss: see s 151H(2A). A worker will satisfy the definition of serious injury if one of two thresholds is breached. The first is that the injury for which the compensation otherwise payable under s 66 for the loss or losses resulting from the injury is not less than 25% of the maximum amount from time to time referred to in section 66(1). The second is if an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division, whether or not compensation is payable under s 66.

28. [246]

    It is common ground between the parties that the plaintiff has suffered a serious injury and is entitled to damages for economic loss. Section 151H(4) of the Workers Compensation Act provides for the indexation of the sum of $48,000.

29. [247]

    There are a number of well-established principles underpinning the assessment of the plaintiff’s claim for economic loss. They are stated by Macfarlan JA (with whom McCall JA and Sackville AJA agreed) in Mead v Kerney [2012] NSWCA 215 at [16]-[27], summarised as follows:

    1. (1)

       It is necessary for the plaintiff to prove the loss for which compensation is claimed.

    2. (2)

       The plaintiff need not prove what employment she is not incapacitated from performing. It is for the defendant, who asserts that the plaintiff has a residual earning capacity, to adduce evidence of what the plaintiff was capable of doing and what jobs are open to such a person.

    3. (3)

       Once the plaintiff’s “theoretical work capacity” is assessed, it is necessary to determine whether the plaintiff could and can, as a practical matter, utilise that capacity to obtain work in the geographic area in which it was reasonable for her to seek work. This is a practical assessment of the likelihood of the plaintiff in fact obtaining such jobs, and reflects the approach identified in Nominal Defendant v Livaja [2011] NSWCA 121 at [65] as follows:

    4. (4)

       The defendant bears an evidential onus concerning the issue of whether the plaintiff has a residual earning capacity that she is practically capable of exercising.

30. [248]

    The plaintiff’s entitlement to damages for economic loss is constrained by s 35 and s 151I of the Workers Compensation Act in its form before the 2001 amendments. The combination of those sections cap the plaintiff’s entitlement to past and future economic loss, as well as superannuation: see Campton v Centennial Newstan Pty Ltd (No 3) [2015] NSWSC 410.

31. [249]

    Sections 36 and 151I of the Workers Compensation Act were (and are) as follows:

32. [250]

    The plaintiff claims $690,177.90 for past economic loss. This is made up of a period where she claims that she was totally incapacitated, in addition to the periods when she was partially incapacitated. The plaintiff submitted that she was totally incapacitated from 6 March 2013 to 25 March 2013: $1,868.50 (s 35 cap) x 3 = $5,605.50; 22 April 2013 to 30 September 2013: $1,903.70 (s 35 cap) x 23 = $43,785.10; 1 October 2013 to 30 November 2013: $1,924.30 (s 35 cap) x 1924,30; 1 April 2015 to 30 September 2015: $1,999.20 (s 35 cap) x 26 $51,979.20; 1 October 2015 to 31 March 2016: $2,016.10 (s 35 cap) x 26 = 52,418.60; 1 April 2016 to 30 September 2016: $2,042.80 (s 35 cap) x 26 = $53,112.80; 1 October 2016 to 31 March 2017: $2,058.10 (s 35 cap) x 26 = $53,510.60; 1 April 2017 to 30 September 2017: $2,084.90 (s 35 cap) x 26= $54,207.40; 1 October 2017 to 31 March 2018: $2,101.70 (s 35 cap) x 26= $54,644.20; 1 April 2018 to 30 September 2018: $2,128.40 (s 35 cap) x 26 = $55,338.40; 1 October 2018 to 31 March 2019: $2,145.30 (s 35 cap) x 26 = $55,777.80; and 1 April 2019 to 8 September 2019: $2,177.40 (s 35 cap) x 23 = $50,080.20. This equates to $547,775.80.

33. [251]

    The plaintiff claims that she was partially incapacitated for the period of 26 March 2013 to 22 April 2013: 4 weeks x $1,924.30 = $7,697.20; 1 December 2013 to 29 March 2013: 17 weeks x $$1,924.30 = $32,712.10; 30 March 2013 to 27 September 2014: 26 weeks x $1,948.80 = $50,668.80; and 28 September 2014 to 28 March 2015: 26 weeks x $1,974 = $51,324. This equates to $142,402.10.

34. [252]

    The “as adjusted” figures provided for by s 35(2) of the Workers Compensation Act are annexed to the schedule of damages. Before her injury, the plaintiff earned $2,084.19 net per week. At all times since March 2013, a comparable employee in the plaintiff’s previous position has earned in excess of that figure, and in excess of the cap in s 35.

35. [253]

    The defendant submitted that the sum of $321,560 should be awarded for past economic loss, calculated as follows. For the period 6 March 2013 to 1 December 2013 (30 weeks): $1,915 x 30 = $57,450. For the period 1 December 2013 to 9 March 2016 (120 weeks): $798 x 120 = $95,760. For the period 10 March 2016 to 11 September 2019 (182 weeks): $925 x 182 = $168,350. $57,450 + $5,760 + $168,350 = $321.560.

36. [254]

    The plaintiff is adamant that she cannot undertake any remunerative employment at all. Part of her reasoning is that the psychologists say that she cannot work without a medical clearance. She has not worked since early 2015.

37. [255]

    The plaintiff says that she is no longer able to work because most days she is in severe pain. She says that there is no predictable pattern to the pain, which strikes randomly. There are days where it is so intense, she cannot even get out of bed in the morning. On other days, although she is able to get out of bed, she needs to lean on her walking stick for assistance. Sometimes, when she puts down her foot as she gets out of bed, she falls over because it is unexpectedly numb. Other days she is more functional.

38. [256]

    In addition to her pain, the plaintiff says her ability to work is also affected by her psychological condition. There are days where she cannot get out of bed because she feels completely worthless as a person and that her life is not worth living. She repeats affirmations to tell herself every day about how she is a good person (T 27.12-50; T 28.1-22).

39. [257]

    In cross examination, the plaintiff was asked whether she thought she might be able to perform desk work, if she were able to change her position from sitting to standing from time to time. She replied that she did not think so (T 292.43-46).

40. [258]

    As previously stated, the plaintiff holds an entrenched view that there is absolutely no job that she could do because of her physical and psychological restrictions (T 294.30-36).

41. [259]

    The plaintiff submitted that the defendant’s documents do not allow the separation of wages derived from exertion from the compensation payments made in the periods of partial incapacity. The plaintiff therefore claims the maximum allowable for the periods, so the compensation payments asserted by the defendant do not doubly reduce the plaintiff’s entitlement to past economic loss.

42. [260]

    The plaintiff’s evidence in respect of her past incapacity, and particularly her recounted conversations with Mr Hanlin, Mr Fotheringham, Ms Johnson and Ms Lockhart concerning the period when she was performing “light duties” between December 2013 and February 2015, was unchallenged.

43. [261]

    Between 6 March and 25 March 2013, the plaintiff was totally incapacitated. On 26 March the plaintiff returned to work, performing no meaningful duties. On 22 April 2013 the plaintiff ceased work and remained off work until November 2013.

44. [262]

    Between 1 December 2013 and December 2014, the plaintiff resumed work on restricted hours, days and duties, gradually increasing her work over the period. By August 2014, the plaintiff had resumed performing limited duties in the pit and blast areas as a spotter and as a crib-relief drill operator.

45. [263]

    On 19 February 2015, her employer told her that she had to be medically cleared to perform her pre-injury duties. The plaintiff’s general practitioner told her he could not provide that clearance, so she has not returned to work since 19 February 2015.

46. [264]

    The expert medical evidence of Drs Hopcroft and Millons (Ex 1) in respect of the impact of the injury upon the plaintiff’s past work capacity was that the plaintiff had “difficulty in ongoing work capacity which will aggravate the symptoms of her back and her hip”.

47. [265]

    The unchallenged expert medical evidence of Dr Roberts was that the plaintiff was “unfit for work from a psychiatric perspective” and “profoundly impaired”. The plaintiff submitted that the Court should be comfortably satisfied that, independent of any incapacity by reason of her physical injuries, the plaintiff was totally incapacitated for work for all relevant periods as a result of her psychiatric condition.

48. [266]

    The plaintiff also referred to the expert evidence of the vocational conclave, Mr Ravagnani and Mr Bass (Ex 4). I consider this evidence in greater detail later in this judgment. When asked about how being certified as unfit for work had affected the plaintiff, Mr Ravagnani stated that it “resulted in her inability to secure and maintain suitable employment to date”. Mr Bass stated that the certification had “negatively impact[ed] the extent to which [she] will seek work, better yet obtain and retain work”.

49. [267]

    Messrs Ravagnini and Bass accepted that had the plaintiff been certified fit for work, she would have had a capacity for some form of work. However, the plaintiff submitted that from a practical perspective, their opinion is illusory because she never regained a capacity for work after the defendant terminated her light duty work in February 2015.

50. [268]

    The plaintiff submitted that with the exception of the periods of partial incapacity between March and April 2013, and between December 2013 and February 2015, the plaintiff has been totally incapacitated for work since 6 March 2013.

51. [269]

    The defendant submitted that in relation to past economic loss, the relevant considerations are as follows:

52. [270]

    In terms of economic loss generally, the defendant does not accept that the plaintiff is totally unfit to perform all forms of employment.

53. [271]

    When considering the issue of incapacity, a number of factors are relevant. They are as follows:

54. [272]

    Accordingly, the defendant submitted that its assessment of past economic loss represents a reasonable approach.

55. [273]

    It is not disputed that the plaintiff was totally incapacitated from work from 6 March 2013 until 1 December 2013. Her loss of earnings for that period of 30 weeks was $1915 x 30, which equates to the sum of $57,450.

56. [274]

    The psychologists, Messrs Bass and Ravagnani, agree that it is reasonable to predict that had the injury not occurred, in the absence of health or other career limiting factors, the plaintiff would have maintained her job as a mining production employee. Had this role come to an end as a result of the downturn in the mining industry, she possessed the skills and experience to find alternative mining work or undertake other practical roles, such as a truck driver or mobile plant operator. She also could have undertaken a range of practical roles in keeping with her past experience that were available in the local area. It is most likely that the plaintiff would have continued to be working as a mining operator in the mining industry.

57. [275]

    It accept the opinions of Drs Million and Hopcroft that had the plaintiff not suffered her injuries to her back and right hip in the accident, it is likely (in light of the state of her pre-existing degenerative spinal and hip conditions) that she would have suffered a slow deterioration of spondylosis and hip arthritis. The combination of these two conditions would have allowed her to work in her current job in the mining industry for only a further 10 years. I find that had the plaintiff not suffered her physical injuries in the accident, she would have continued to work as a production employee in the mining industry as set out in the psychologists’ reports referred to above, earning the same salary plus salary increases until 2029. After that 10 year period, when the plaintiff attained the age of 57, it is my view that she would have retained some residual earning capacity. She most likely would have had a decreased earning capacity until aged 67. She most likely would have worked perhaps two or three days per week, at 12 hours in total, in a role such as sales or customer service, where she would have been able to sit and stand when she felt uncomfortable. The parties are to calculate this amount in accordance with the appropriate award rates.

58. [276]

    The next issue to address is what residual earning capacity, if any, the plaintiff has from 1 December 2013 to date. On 1 December 2013, the plaintiff returned to work on a part-time basis. Drs Millons and Hopcroft stated that her prognosis in relation to her spinal and right hip injuries is poor. Dr Hopcroft was of the opinion that as at 16 March 2018, the date of his last report, she was still unfit to contemplate a return to any workplace. Dr Millons’ opinion was that the plaintiff should have the capacity to work in an office-based environment for 6 hours a day, 4 days a week.

59. [277]

    From a psychiatric point of view, it is Dr Roberts’ view that the plaintiff suffered from a major depressive disorder and panic disorder. It was his opinion that independent of any physical restrictions, the plaintiff was totally unfit for work in any capacity. Even if her physical limitation were to fully resolve, she would remain profoundly impaired. Her emotional fragility and altered interpersonal functioning would compromise her participation in the workforce. He was of the opinion that the conditions she suffered could compromise memory and concentration. However, he stated it would be premature to state that she has reached maximum medical improvement.

60. [278]

    As previously stated, Dr Roberts was not required for cross examination. The defendant had the plaintiff examined by a psychiatrist, but did not serve any reports. As such, I accept Dr Roberts’ opinion.

61. [279]

    The plaintiff attempted to return to work, and was partially incapacitated during the dates as set out in [250] of this judgment. Except for those periods, the plaintiff has not worked since 29 March 2015. Both Dr Roberts (from a psychiatric point of view) and Dr Hopcroft (from an orthopaedic point of view) agreed that the plaintiff has been, and will remain, totally unfit for work from 29 March 2015 onwards. Dr Millons disagreed. He was the opinion that from an orthopaedic point of view, the plaintiff should have capacity to work in an office-based environment for 6 hours a day, 4 days a week. It is necessary to consider the effect of both the orthopaedic and psychiatric injuries had on the plaintiff’s earning capacity.

62. [280]

    I accept that from the date of the accident to the date of this judgment, on the basis of both the psychiatric and orthopaedic evidence, the plaintiff has had no residual earning capacity, with the exception of some partial working capacity from 26 March 2013 to 28 March 2015. The parties are to calculate past loss of earning capacity.

63. [281]

    The plaintiff claims $1,365,512.80 for future economic loss on the basis of total incapacity at the current s 35 cap. $2,177.40 x 737.8 x .85% = $1,365,512.80.

64. [282]

    The defendant allows the sum of $286,449. $2,175 less residual earning capacity of $1,250 net per week = $925 x 412 – 25% for vicissitudes = 286,449.

65. [283]

    The expert medical evidence of Drs Hopcroft and Millons (Ex 1) in respect of the plaintiff’s capacity to seek, obtain and retain work at the present time and into the future was that she was “significantly restricted in any future work activities by the risk and probability of increasing the protrusion of the L5/S1 disc and the aggravation of the arthritis of her hip.”

66. [284]

    The doctors suggested that the plaintiff’s work life was likely to be curtailed in any event as a result of her pre-existing degenerative condition. However, the plaintiff submitted that her pre-existing condition does not affect her ongoing claim for economic loss to retirement age, as the unchallenged psychiatric evidence of Dr Roberts is that she is and will remain “profoundly impaired” for work.

67. [285]

    The opinion of the plaintiff’s treating psychologist, Mr Freeman, is also important. When asked by the case manager for Coal Mines Insurance in October 2016 to comment on the plaintiff’s capacity for work, he stated, “her current capacity for work is zero”.

68. [286]

    The plaintiff submitted that the combined orthopaedic and psychiatric evidence leads to the inevitable conclusion that the plaintiff is and will remain totally incapacity for all work.

69. [287]

    With regards to the expert vocational evidence of Messrs Ravagnani and Bass (Ex 4), the plaintiff submitted that the experts stated that until the plaintiff is medically certified fit for work, by working she would be acting against medical advice. However, even if she were so certified, she would still be incapable of performing her pre-injury duties. The plaintiff submitted that there are no realistic employment opportunities identified by the defendant in the locally available job market that the plaintiff would be capable of performing.

70. [288]

    The defendant does not accept that the plaintiff is totally incapacitated for employment.

71. [289]

    The evidence also indicates that the plaintiff, by reason of her pre-existing medical conditions, would need to cease all forms of employment by 2029.

72. [290]

    The defendant has assessed the plaintiff’s residual earning capacity at $1,250 per week, and her earnings but for the injury at $2,175 per week, to reflect an increase for CPI changes between 2016 and 2019.

73. [291]

    The defendant has also increased vicissitudes from the usual 15% to 25% by reason of the plaintiff’s pre-injury work in a heavy industry. The defendant submitted that the plaintiff would have been completely incapacitated for all forms of employment within 10 years is due to the pre-existing conditions of her degenerative back condition, osteoarthritic hips and obesity.

74. [292]

    The defendant submitted that it is appropriate to increase vicissitudes, as it is unlikely that the plaintiff would have continued in heavy work for a 10-year period and then suddenly cease work altogether. It is more likely that during that period, the plaintiff would have left the coal mining industry for lighter work as her medical conditions progressed. At the very least, it is likely she would have taken periods of time away from work by reason of advancing symptoms in her back or hips.

75. [293]

    As previously stated, I accept that if the plaintiff had not been injured in the accident, she would have worked in the mining industry in the well-paid job she had (or similar) for 10 years. She enjoyed the work and the work environment. After 11 September 2029, when she could no longer perform the heavy work, it is my view that she would have obtained some other less remunerative employment, probably on a casual basis of 15 hours per week. She was regularly employed prior to the accident and in my view that would not have changed, despite her pre-existing medical conditions. While it is not possible to be precise, I have arrived at the figure of 15 hours per week on the basis that she most likely would have obtained the type of employment set out by the psychologists of between two to three days per week, or some other variation of hours amounting to 15 hours per week. This period of economic loss is to be calculated on the average earning per week.

76. [294]

    It would seem that the plaintiff may have no residual earning capacity in the future, with the exception of four factors that have to be taken into account. The first is that Dr Roberts stated that from a psychiatric point of view “at this stage” (that is, at 15 October 2015), it would be premature to consider that the plaintiff has reached maximum improvement to her condition. Hence, it is possible that her psychiatric condition may improve in the future. The second is that the plaintiff holds an unshakable belief that she cannot carry out any paid employment at all. The third is that she exaggerated her disabilities to some extent, which was demonstrated in the video surveillance. I have commented upon this earlier in this judgment. The final factor is that if the plaintiff’s psychiatric condition improves, she may be capable of doing a modest amount of work sometime in the future of the types set out by Messrs Ravagnani and Bass.

77. [295]

    Messrs Ravagnani and Bass say that the plaintiff has developed varying degrees of competence within a range of areas, including sales and customer service, product knowledge, numeracy, money handling and time management. She has also developed many practical skills associated with her mining industry experience, including truck driving, mobile plant operation, workplace health and safety and using specialised equipment.

78. [296]

    Additionally, the psychologists point out that the plaintiff possesses generic skills that are fundamental to the world of work. These include the ability to communicate and interact with others, take instruction or correction, work with minimal supervision, undertake a task to completion, achieve minimum standards of performance, solve problems, plan and prioritise, work in a team, be resilient and make judgements and decisions. Other basic attributes include reliability, punctuality and flexibility. Under other circumstances, these attributes would enhance her employment.

79. [297]

    According to the psychologists, the plaintiff should be functionally suitable to a sales or customer service role. If one became available, then it is likely that only on the job training will be necessary. While the plaintiff did complete a secretarial course in 1998, she has not yet undertaken an actual clerical role. She would require formal skills updating for clerical work, as office technology has changed considerably since that time.

80. [298]

    Despite the plaintiff’s belief as to her working capacity, I agree with the psychologists’ view that the plaintiff has potential work capabilities subject to her psychiatric or orthopaedic injuries and disabilities. The plaintiff impressed me as having good communication skills. It is my view that she is capable of doing more than she says she can, as demonstrated on the video surveillance. It is difficult to say with any precision whether or not, and to what extent, her psychiatric condition will improve. Even if there is some improvement, she will still be hampered by her orthopaedic injuries and disabilities. In this regard, I note that Dr Millons opined that after her accident, the plaintiff was capable of working 6 hours per day 4 days per week. Dr Hopcroft disagreed. My view is that 6 hours per day 4 days per week is far too optimistic. I also very much doubt that the plaintiff’s psychiatric condition will totally resolve, and is more likely to be characterised by periods of slight improvement. While the defendant submitted that even if the plaintiff had not been injured in the accident she would have been unable to work due to her pre-existing medical conditions, on the balance of probabilities, I do not think that it would have been likely. Even if she developed some discomfort due to these pre-existing conditions, there are jobs that she could still have coped with.

81. [299]

    In accordance with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 (“Hutton”), I make an allowance in the form of a global sum for the possibility that the plaintiff may obtain some future employment on a casual basis from time to time. Doing the best I can, I assess the plaintiff’s future residual earning capacity due to the injuries and disabilities suffered in the accident at $15,000 per year.

82. [300]

    As to whether the vicissitudes should be increased to 25%, I have not made a finding that the plaintiff would have been taken out of the workforce due to her pre-existing medical conditions. Therefore, I am not persuaded that I should increase vicissitudes to 25%. Vicissitudes should remain at the usual 15%.

83. [301]

    The parties are to calculate this amount for future economic loss as at the date of the judgment.

84. [302]

    The plaintiff claims $52,030 for Fox v Wood. The defendant also estimated the Fox v Wood figure to be $52,030, which is 20% of the weekly payments of compensation that have been paid.

85. [303]

    As the $52,030 figure to which the parties refer does not reflect my award for economic loss, the amount is to be recalculated by the parties.

86. [304]

    The plaintiff claims damages for lost future superannuation at the rate of 13.9% of future economic loss in accordance with Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175. The quantification of damages for future economic loss is the maximum allowable pursuant to s 151(1) of the Workers Compensation Act, and no further entitlement to damages for lost future superannuation is available: see Campton v Centennial Newstan Pty Ltd (No 3) [2015] NSWSC 410.

87. [305]

    The defendant submitted that past superannuation loss represents 11% of the past loss (excluding the period between 6 March 2013 and 1 December 2013 when the plaintiff’s past loss was calculated at the maximum under s 151(1) of the Workers Compensation Act), and that future superannuation is calculated at 12% of the net award for future economic loss.

88. [306]

    I note that for future loss of superannuation, the plaintiff claims 13.9% whereas the defendant allows 12%. If the rate cannot be agreed, I will hear short submissions on this topic as to why the parties differ in the percentage, and which one is correct. The parties are to calculate this amount in accordance with my findings on economic loss, if possible.

89. [307]

    The past out of pocket expenses have been agreed in the sum of $70,052.49.

90. [308]

    The parties agree that the combination of the evidence from the expert medical orthopaedic conclave (Ex 1) and the evidence from the expert occupational therapy conclave (Exs D and E) have resulted in a significant amount of agreement in respect of the plaintiff’s future out of pocket expenses. That said, there remain several matters of contention. These aspects will be separately addressed.

91. [309]

    The defendant submitted that it is appropriate to increase vicissitudes when awarding future out of pocket expenses to take into account the plaintiff’s pre-existing conditions, including the advanced degeneration in her back, osteoarthritis in both hips, obesity and bursitis. Each of these conditions is capable of giving rise to the need for conservative medical treatment, and should be reflected by a greater deduction for vicissitudes. The defendant submitted that a reduction of this kind is consistent with the need to discount damages in circumstances where a non-tortious event contributes to the loss.

92. [310]

    The defendant submitted that the future out of pocket expenses should account for conservative care for a back disability by allowing $1,000 per annum for the plaintiff’s remaining years, and reducing this sum by 50% for vicissitudes. This sum includes an annual amount of $275 for equipment required as agreed by the occupational therapists.

93. [311]

    I do not agree with the defendant’s submissions, as prior to the accident the plaintiff did not regularly consult medical practitioners for problems due to her back. In my view, it is more likely than not that in the future, half of the plaintiff’s medical consultations would have been incurred due to her degenerative back, osteoarthritis in both hips, obesity and bursitis.

94. [312]

    In Sharman, Gibbs and Stephen JJ commented on the applicability of deductions for the vicissitudes of life from future medical expenses as follows at 587:

95. [313]

    I therefore do not make any deduction for vicissitudes for future medical expenses.

96. [314]

    The defendant also does not make any allowance for the plaintiff’s future hip replacement, which I will refer to later in this judgment.

97. [315]

    The plaintiff claims $12,990.60. The plaintiff consults Mr Meeran, her general practitioner, monthly at $60 per consultation for medical certificates and prescriptions. $13.85 x 983.2 = $12,990.60.

98. [316]

    She also consults Mr Freeman, her psychologist, on a fortnightly basis at $180 per visit. Dr Roberts, psychiatrist, supports the plaintiff’s need for psychological treatment. This equates to $84,483.

99. [317]

    I allow those amounts as being reasonable and necessary.

100. [318]

     Following the accident, the plaintiff used Palexia to treat her severe back pain. If the pain became extreme, she also took Endone. She took 150 mg of Zoloft per day, 100mg of Tramadol twice per day and Neurofen on a regular basis.

101. [319]

     Since about 22 May 2018, she has ceased taking Zoloft. She also no longer takes Neurofen following stomach surgery in October 2018, replacing this with 2 Panadol per day. The plaintiff also now takes 60 mg of Cymbalta per day, 150 mg of Tramadol twice per day, and either 15 mg or 5 mg of Endone per day, depending on whether she is having a “good” or “bad” day. She says that she has good days 2 days per week and bad days 5 days per week.

102. [320]

     Dr Roberts supports the plaintiff’s need for ongoing Zoloft, which she no longer takes, and psychological therapy. The plaintiff submitted that in the absence of any challenge to her evidence, these costs should be allowed. Their cost is set out in the plaintiff’s schedule of damages.

103. [321]

     The plaintiff’s costs for ongoing non-prescription medication is $7.35 x 938.2 = $6,896.77; for ongoing prescription medication is $9.62 x 983.2 = $9,021.48. Added together, her medications total $15,9223.25. These amounts are uncontested. I allow them.

104. [322]

     The parties agree that the plaintiff requires 4 sessions of physiotherapy per year at $175.57 per session. This equates to $12,670.75 (Ex E). Ongoing hydrotherapy (Ex 1) at $500 per annum equates to $9,016.10. $12,670.75 + $ 9,016.10 = $21,686.85.

105. [323]

     The plaintiff claims an allowance of $5,000 for right hip surgery, to be performed in the future as required.

106. [324]

     The defendant does not allow any sum for future hip replacement. Both orthopaedic specialists agreed the plaintiff “may face right total hip replacement” surgery. Dr Hopcroft believed her condition was due to a disc protrusion caused by the accident which resulted in a “back condition” and “gait disturbance”. For his part, Dr Millons was only prepared to accept that the plaintiff’s back condition “may” have made a “material contribution to the acceleration” of the plaintiff’s hip condition, and that she would have required a hip replacement “no matter what” (T 104.49-T105.1).

107. [325]

     The plaintiff submitted that given she was asymptomatic before her injury in March 2013 in respect of her lumbar spine and right hip, and that her altered gait has only manifested itself since the injury, the “common sense” approach to determining causation of her right hip symptoms and her need for total right hip replacement is the injury sustained by her on 6 March 2013.

108. [326]

     The orthopaedic surgeons agree that the plaintiff may face total right hip replacement. In accordance with Hutton, I should make an allowance for the possibility that the plaintiff may come to a hip replacement earlier, as the accident had a material contribution to the acceleration of the plaintiff’s hip condition. Doing the best I can, I allow the sum of $4,000 as being reasonable.

109. [327]

     The occupational therapists (Ex E) have agreed that the plaintiff needs a sit/stand stool at $206 every 5 years at $41.20 per annum; a long-handled sponge at $19 every 6 months at $38 per annum; a long-handled reacher at $29.70 every 2 years at $14.85 per annum; grab rails to be installed at $570 every 10 years at $57 per annum; a robotic vacuum cleaner at $389 every 5 years at $77.80 per annum; a kitchen trolley at $145 every 5 years at $29 per annum; a sock getter at $14.95 every 2 years at $7.47 per annum; a shoe horn at $15.88 every 5 years at $3.18 per annum; and a kitchen trolley at $145 every 5 years at $29 per annum.

110. [328]

     The plaintiff also claims $2,700 every 7 years for an adjustable bed at $385.71 per annum; a recliner chair at $2,603 every 7 years at $371.86 per annum; and a utility chair at $485 every 7 years at $69.29 per annum. $826.86/52 x 938.2 = $14,918.46. The defendant does not agree to these amounts.

111. [329]

     The areas of occupational therapy disagreement are in respect of the provision of an adjustable bed, a recliner chair and a utility chair (Ex E). Ms Barbara is of the view that the plaintiff requires an adjustable bed at $2,700 to be replaced every 7 years; a recliner chair at $2,603 to be replaced every 7 years; and a utility chair at $85 to be replaced every year. Ms Zeman does not agree that the plaintiff requires these items.

112. [330]

     Ms Barbara supports the provision of the “utility chair” a “simple chair with armrests that’s height adjustable” so the plaintiff could safely perform “sit-to-stand transfer[s]”. Ms Barbara supports the provision of the recliner chair because the plaintiff was most comfortable “being in a reclined position and in a reclined position and in a softer lounge chair”. The plaintiff could not use her existing manual recliner chair because it caused “too much pain” for her to operate.

113. [331]

     Ms Barbara also supports the provision of the fully adjustable bed to improve the plaintiff’s sleep, which she said is “essential for many aspects of health, but particularly, obviously, pain management and also mental health”.

114. [332]

     By contrast, Ms Zeman considers the plaintiff’s needs from a “functional” not a “comfort” perspective, stating “what does she need functionally to perform the task, as opposed to more comfort factors - you know, that might make her more comfortable”. In addition, Ms Zeman asserted that the plaintiff was capable of transfers into and out of chairs, and seemed unaware that the plaintiff already had a recliner chair, stating, “I wouldn’t necessarily - I mean, I don’t have a recliner chair. A recliner chair is not a normal piece of furniture most people have. So, I wouldn’t necessarily prescribe a recliner chair unless there was a reason to have a recliner chair; and I didn’t see that.”

115. [333]

     The plaintiff submits that the provision of the three items of equipment is “reasonably required” as a result of the injury suffered, particularly as Ms Barbara identified a lack of safety in the current method of chair transfers and the ameliorating effects of the items upon the plaintiff’s pain management and mental health.

116. [334]

     The defendant submitted that this equipment is not reasonably necessary. I disagree. It is my view that the plaintiff is entitled to this equipment as it is beneficial for her back pain. I allow these amounts as necessary and reasonable.

117. [335]

     The parties are to calculate the amount for future equipment.

118. [336]

     Both occupational therapists agreed that the plaintiff would require the one-off services of a residential pain program at $9,414 and occupational therapy of 6 hours at $1,053.42. I allow this amount.

119. [337]

     The expert medical evidence of occupational therapists Hopcroft and Millons (Ex 1) was that the plaintiff’s future medical treatment would include ongoing hydrotherapy at a cost of approximately $500 per year. The parties agree with this. I allow this amount as being reasonable and necessary.

120. [338]

     Section 151K of the Workers Compensation Act applies. It reads:

121. [339]

     The plaintiff claims for three phases of past domestic care. They are:

     1. (1)

        the period of 6 March 2013 to 31 November 2013 (“the first phase”), for which the plaintiff claims past domestic assistance at 31 hours per week at $27.70, $27.82 and $27.96 per hour = $33,235.27;

     2. (2)

        the period of 1 December 2013 to 18 February 2015 (“the second phase”), for which the plaintiff claims past domestic assistance at 21 hours per week at $27.96, $28.24 and $28.87 per hours = $37,720.32; and

     3. (3)

        the period of 19 February 2015 to 12 September 2019 (“the third phase”), for which the plaintiff claims past domestic assistance at 23 hours per week at $28.87, $29.41, $29.98, $30.15, $30.55, $31.03 and $31.54 = $166,194.08.

122. [340]

     The sum of these phases equates to $33,235.27 + $37,720.32 + $166,194.08 = $237,149.67.

123. [341]

     The defendant allows past domestic services at 4 hours per week x 6.5 years at $30 per hour. This equates to $40,669.

124. [342]

     The plaintiff relies heavily on her children, parents and a neighbour to assist her in and around the home.

125. [343]

     Her son and daughter help with sweeping, mopping, vacuuming, dusting and cleaning bathrooms and toilets. They help with the laundry, as well as meal preparation and washing up. They wash the plaintiff’s car. They accompany her when she goes shopping, lifting and carrying and putting away the groceries.

126. [344]

     The plaintiff’s son and father also assist with whipper snippering, mowing the lawn, gardening and maintenance. Her father also washes her car. The plaintiff’s daughter occasionally assists the plaintiff to dress in the morning.

127. [345]

     The plaintiff’s mother assists with washing, changing the sheets and making the beds. She also helps with laundry.

128. [346]

     The plaintiff gave evidence that she is no longer able to hang clothes out on the line. She explained to the occupational therapists that hanging clothes requires her to twist her back, which she cannot do (T 317.23-27).

129. [347]

     The plaintiff’s neighbour, Fiona Wilton, assists with the washing and cleaning the bathrooms and toilet from time to time. She also helps with the shopping. Since the plaintiff swore her evidentiary statement on 22 May 2018, there has been no change to the amount of domestic assistance she receives from her children, parents and neighbour.

130. [348]

     On 19 January 2017, the plaintiff was interviewed at her home by Ms Barbara, an occupational therapist engaged by her solicitor to prepare a report for the purposes of her case. Ms Barbara asked her questions about the nature and type of assistance that had been provided to her since her accident, as well as the names of the people who provided assistance. The plaintiff says she truthfully answered Ms Barbara’s questions.

131. [349]

     The plaintiff’s son is now 19 and an apprentice plant mechanic at Upper Hunter Shire Council. Her daughter is aged 16 and is in Year 11. Her father is 76 and her mother is 74. The plaintiff’s mother has had a lot of health issues including cancer of a kidney. The plaintiff’s father still works part time as a coach driver to support the family. His health is reasonable, but he is no longer as capable of assisting the plaintiff as he once was.

132. [350]

     The plaintiff believes that she will not be able to rely on her parents and children for help much longer, as her children are preparing to leave home and begin their own lives, and her parents are getting beyond the point of being able to assist.

133. [351]

     The plaintiff submitted that the Court should prefer the assessment of Ms Barbara to Ms Zeman in relation to domestic cleaning. Ms Zeman’s adjustment of care for domestic cleaning seemed to be based upon surveillance showing the plaintiff’s use of stairs and her single movement of a handbag over a very short period of time. A viewing of the surveillance does not support Ms Zeman’s contention.

134. [352]

     The plaintiff further submitted that the Court should prefer the assessment of Ms Barbara to Ms Zeman in relation to yard and garden maintenance. Ms Barbara made her assessments based upon the plaintiff’s activities and the nature and size her home. Ms Zeman made her assessment on the basis of ABS statistics stating the average hours that an Australian female attends to yard and garden tasks. The plaintiff is not an average female, and the comparison is inappropriate.

135. [353]

     For those reasons, the plaintiff submitted that the Court would for prefer the assessments of Ms Barbara. Her assessments are modest and consistent with the balance of the medical evidence.

136. [354]

     The plaintiff’s evidentiary statement (Ex A) confirmed the impact of the accident on her capacity to perform domestic activities, and a summary of her required gratuitous assistance post-injury. The evidentiary statement also confirmed the truthfulness of the history set out in Ms Barbara’s expert report (Ex A, [113.2]; Ex B(ii), Tab 6.5).

137. [355]

     The defendant did not submit that the services weren’t performed as described. Rather, the defendant relied upon Ms Zeman’s to support the extent of the plaintiff’s needs for domestic assistance.

138. [356]

     The occupational therapists’ conclave report (Ex D) established that the plaintiff did have a need for past “domestic” assistance. However, Ms Barbara believed the plaintiff also required “personal” assistance. Both experts revised their assessments in light of the video surveillance. Ms Zeman considered the need for past care to be 4 hours per week plus a “fortnightly car wash”; Ms Barbara’s assessment was 31 hours per week from 6 March to 30 November 2013, 18 hours per week from 1 December 2103 to 18 February 2015 and 23 hours per week from 19 February 2015 to date.

139. [357]

     The plaintiff submitted that Ms Zeman’s initial assessment, before and after her viewing of the surveillance footage, was erroneously based upon her assessment of the commercial care needs, not the gratuitous care provided. It was also based upon her perception that the video footage of the plaintiff’s capabilities was “entirely inconsistent” with her presentation upon assessment in August 2017.

140. [358]

     The plaintiff submitted that Ms Zeman’s assessment of the footage is not accurate. The footage shows the plaintiff’s abilities as being entirely consistent with her presentation to Ms Barbara in February 2017. After watching the footage, Ms Barbara did not significantly alter her assessment of the need for gratuitous assistance as she had originally calculated.

141. [359]

     To illustrate the difference between the experts’ perceptions, the plaintiff submitted that the Court should have regard to their respective evidence in relation to the video of 3 September 2015, where the plaintiff is seen to ascend and descend stairs with the assistance of a handrail. The plaintiff submitted that Ms Barbara’s explanation of her observation of the plaintiff’s movements was clear and cogent (T 368), while Ms Zeman’s explanation was not (T 358).

142. [360]

     The defendant submitted that both occupational therapists agreed that the plaintiff has required past assistance with activities of daily living since her injury. Ms Barbara assessed the plaintiff as requiring domestic and personal assistance, while Ms Zeman assessed the plaintiff as requiring domestic assistance only.

143. [361]

     There is a significant difference between the occupational therapists regarding the extent of the need for past care. Ms Zeman identified the need for care at 4 hours per week. This care related to spring cleaning, bathroom cleaning, vacuuming and external heavy household maintenance. This level of care was a reduction from her original assessment of 8.6 hours per week.

144. [362]

     The basis of the reduction was her observations on the video. In her evidence, Ms Zeman stated that the video demonstrated movement patterns far in excess of the plaintiff’s capabilities when she presented to Ms Zeman at the time of assessment. Importantly, the video contained footage which both pre-dated and post-dated the assessment. Ultimately, Ms Zeman concluded:

145. [363]

     Ms Zeman’s qualitative assessment involved comparing the plaintiff’s presentation at her initial four-hour interview to that observed in the video. Her assessment of the plaintiff’s presentation was as follows:

146. [364]

     Ms Zeman was not challenged regarding these observations of the plaintiff, nor did the plaintiff give evidence that Ms Zeman had inaccurately reported her presentation in the assessment.

147. [365]

     There can be little doubt that the video, taken over a two year period, fails to demonstrate the type of behaviour which Ms Zeman described during the plaintiff’s initial assessment.

148. [366]

     Ms Zeman is not alone in recording such marked pain behaviours. During her assessment on 19 January 2017, Ms Barbara noted the plaintiff could stand for only a few minutes, and her posture was rigid in the torso with arms kept close to the body at all times. The plaintiff also had a sitting tolerance of twenty minutes in an upright armchair before she elected to rise and stand. The plaintiff’s demonstration of walking was also indicative of significant disability. She walked only a small distance in and outside the house, and walked with “a very fixed, rigid gait with reduced leg lift and swing”. Ms Barbara noted that when changing direction, the plaintiff moved with a “fixed torso and no spinal rotational movement”. She tended to walk with her weight forward on the front of her feet and her heels off the ground. Ms Barbara also observed the plaintiff momentarily support herself on available fixtures or furniture when walking around the home, exhibiting pain behaviours when descending stairs.

149. [367]

     The defendant submitted that Ms Barbara’s observations of significant disability are clearly at odds with the plaintiff’s capabilities in the video. Ms Barbara modified her claim for past care after viewing the film. She did so by reducing the care provided to the plaintiff by 3 hours after 1 December 2013. The “minor modification” was in relation to grocery shopping and transport assistance.

150. [368]

     The defendant submitted that Ms Barbara’s reluctance to accept that the plaintiff is exaggerating her disabilities is difficult to understand. Firstly, the film demonstrated activities inconsistent with her presentation on assessment. Secondly, the film showed the plaintiff performing activities inconsistent with her stated limitations.

151. [369]

     One example of this inconsistency is the plaintiff’s stated ability to drive. The plaintiff’s stated that she was limited to driving a 30 km distance (to her parent’s house) because of her lower back pain. In the video, the plaintiff is clearly shown to be able to drive from Sydney for an hour and a half. She also stated that she was dependent on her parents or friends to drive her to any appointments or events further away from home. That was not shown in the film. The plaintiff also stated that she shopped or ran errands “only when accompanied”. Ms Barbara recorded, “Gemma is unable to complete grocery shopping on her own. She is accompanied by her children, her mother or a friend for all grocery shopping. All manual handling of the shopping and putting away is completed by others.” Clearly, the film has shown this statement to Ms Barbara to be untrue.

152. [370]

     The defendant submitted that Ms Barbara’s reluctance to modify her recommendations in light of these obvious inconsistencies indicate that her opinion should be rejected.

153. [371]

     The defendant also took issue with Ms Barbara’s recommendations for meal preparation assistance. Ms Barbara thought that the plaintiff required 3 hours of commercial care to “help maintain that level of meal preparation and nutrition in her house in a balanced way”. “[I]t’s not at all saying she can’t prepare meals and she won’t prepare meals, but the assistance of the three hours will maintain that quality for her and her household.” The defendant submitted that Ms Barbara’s logic is flawed. If the plaintiff can and will prepare meals, why does she require 3 hours of commercial assistance? What is meant by “maintain that quality for her and her household”? The defendant submitted that Ms Barbara’s claims for past and future care represent a “wish list”, as opposed to care reasonably necessary to accommodate the plaintiff for her injury.

154. [372]

     It is also important to remember that towards the end her period of employment with the defendant in 2016, the plaintiff was working up to 36 hours a week. It is difficult to see how Ms Barbara’s assessment can be appropriate during the period of time where the plaintiff demonstrated a capacity to work those hours, plus driving to and from her property at Aberdeen (a return trip of one hour by car).

155. [373]

     Furthermore, the plaintiff’s care providers provided no evidence, even though they were available to the plaintiff. The defendant therefore submitted that the appropriate Jones v Dunkel inference should be drawn. I do not agree. If the defendant wished to dispute their evidence, it should have required them for cross examination.

156. [374]

     For these reasons, the defendant submitted that Ms Zeman’s assessment after observing the film is a fair and proper reflection of the care provided to the plaintiff.

157. [375]

     Ms Barbara and Ms Zeman were asked the answer the following questions.

158. [376]

     Ms Zeman, after viewing the video surveillance, identified the need for past care at 4 hours per week. This is made up as follows: 1.5 hours per week for domestic assistance, including for bathroom maintenance, spring cleaning and window cleaning; and 2.5 hours per week for external and heavy household maintenance. This equates to 4 hours per week, plus provision for a fortnightly car wash. Ms Zeman assessed the plaintiff as having no past care requirements relating to personal care, laundry, transport, shopping, or meal preparation, as the plaintiff was able to make the necessary adaptions to function within her symptoms. Ms Zeman’s assessment of 4 hours per week did not fluctuate to take into account periods where the plaintiff developed a psychological disorder that worsened over time, nor did it account for the fluctuating severity of her physical disabilities.

159. [377]

     I prefer Ms Barbara’s assessment. However, I have made modifications to accord with my findings in relation to the video surveillance, from which I determined that the plaintiff was exaggerating her symptoms.

160. [378]

     Ms Barbara summarised the three phases of past domestic services as follows. Ms Barbara based the hours upon discussion with Gemma, review of her medical reports, observations of her home and property and Ms Barbara’s own experience in requirements for care after injury. Ms Barbara considered the care provided to have been fair and reasonable in light of these factors. This care would not have been provided if not for the 6 March 2013 injuries.

161. [379]

     The plaintiff did not return to work for 20 days after the accident. She was in severe pain. During this period immediately after the accident, she would have required both personal and domestic assistance as set out in Ms Barbara’s chart for the first phase in the amount of 31 hours.

162. [380]

     From 26 March 2013 to 26 April 2013, the plaintiff attended work but was not given any real work to do. From 27 April 2013 to 30 November 2013, the plaintiff was off work. While she was in severe pain during this period, I do not think the plaintiff required 31 hours of domestic care. In my view, she was capable of attending to her personal hygiene after the accident for a period of 20 days, of preparing some meals, of driving to and from work for about one hour round trip, and of doing some light shopping. She was not capable of doing household cleaning, laundry, certain meal preparation, shopping for heavy or bulky items, yard and home maintenance, car cleaning and driving long distances. Doing the best I can, I assess the plaintiff’s gratuitous care at 16 hours per week for this period. To arrive at this figure, I have allowed 5 hours domestic care for meals, 7 hours for household cleaning and laundry, 1 hour for shopping and 4 hours for yard and home maintenance. This allowance takes into account that the plaintiff has a large yard that requires mowing and gardening. She also required fortnightly car washing.

163. [381]

     For the second phase, Ms Barbara was of the opinion that the plaintiff required 19 hours per week of gratuitous care.

164. [382]

     From November 2013 to March 21 March 2014, the plaintiff returned to work for 3 hours per day, 3 days a week. She worked in the office assisting the production team. Her hours were gradually increased each month for the next few months, as her back became increasingly painful.

165. [383]

     From 22 March 2014 to 28 March 2014, the plaintiff was unable to work.

166. [384]

     From 29 March 2014, the plaintiff returned to work starting 5 hours per day, 4 days per week and increasing steadily until her hours were 9 hours per day, 4 days per week.

167. [385]

     From 16 August 2014 until 30 December 2014, the plaintiff’s duties were office work and going to the pit as a relief drill operator for about 1.5 hours each time. She was also required to drive a light vehicle around the pit delivering drill patterns and paperwork to the operators. From around Christmas 2014, the plaintiff drove soil samples from Mount Arthur to Gundy. From 26 January 2015, she sat in the crib room for 9 hours per day, 4 days per week. By February 2015, the plaintiff began to experience increased pain in her right hip and right leg. Her hours were reduced to 6 hours, 4 days per week.

168. [386]

     The plaintiff did not require personal care during the second phase. She was capable of showering and dressing herself and tending to her personal needs. She still required domestic care for house cleaning, laundry, some meal preparation and shopping for heavy or bulky items. Per week, I allow 4 hours meal preparation, 4 hours for household cleaning and laundry, 1 hour for shopping and 3 hours for yard and home maintenance and fortnightly car washing. This totals 12 hours per week of gratuitous domestic care. I have taken into account that over this period, some weeks she may have required a little more care and some weeks a little less.

169. [387]

     The third phase was identified by Ms Barbara as ending at 19 February 2017. However, as the plaintiff has not returned to work from that date, I am calculating phase three from 19 February 2015 to the date of this judgment. For this period, Ms Barbara was of the view that the plaintiff required 23 hours per week.

170. [388]

     On 19 February 2015, the plaintiff was certified unfit for work. On 9 May 2016, her employment was terminated.

171. [389]

     During this period, the plaintiff’s constant back pain started to radiate to the lower part of her back. As her back and right leg pain increased, her psychological condition has deteriorated. Dr Samson says that the plaintiff’s diminished motivation, low energy and disturbed sleep has persisted at a level which undermines her ability to adequately participate in household and parenting duties. She has continued to require the support of family and friends.

172. [390]

     The plaintiff has been capable of buying fresh fruit and vegetables if she uses a high trolley and packs bags lightly. She has been able to put them into her car without bending and transport them home. She may have to do a number of trips so that she avoids carrying heavy loads, or have certain items delivered. While the plaintiff’s oven is at waist level, I accept that she has had difficulty with lifting heavy pots and pans containing food onto the cooktop and into the oven.

173. [391]

     During this period, I am of the view that the plaintiff has required 8 hours of domestic assistance, which included preparing some meals and other services set out earlier, as well as 3 hours per week for yard and house maintenance. These equate to 11 hours of gratuitous domestic assistance per week. She also required fortnightly car washing and fortnightly grocery delivery. The parties are to calculate this amount.

174. [392]

     Both occupational therapists accept the plaintiff requires future assistance of a commercial nature. There is a no dispute as to the rates for the provision of the services.

175. [393]

     The plaintiff claims 8 hours per week domestic assistance at $48.28 per hour = $386.24; 4 hours per week yard and garden maintenance at $48.28 per hour = $193.12; fortnightly car washing at $60 per wash = $300; and weekly grocery delivery at $13 per week = $134. $622.36 x 938.2 = $583,898.15.

176. [394]

     Regarding future care, the defendant has made an allowance of 4 hours per week for a further 10 years, with a reduction of 25% for vicissitudes. $46.79 x 412.9 – 25% equates to $57,959. The defendant submitted that, similar to economic loss, the deduction should be made by reason of the plaintiff’s pre-existing condition which would have given rise to her requiring care and assistance even if she had not been injured in the accident. Section 151K(3) of the Workers Compensation Act requires that fact to be taken into account, as does the law.

177. [395]

     In summary, the experts’ respective positions before watching the surveillance footage were as follows.

     1. (1)

        Meal preparation: Ms Zeman did not allow any hours for meal preparation; Ms Barbara allowed 3 hours per week.

     2. (2)

        Domestic cleaning: both experts agreed to allow 3 hours per week.

     3. (3)

        Laundry: both experts agreed upon 2 hours per week.

     4. (4)

        Yard and garden: Ms Zeman allowed 2.5 hours per week; Ms Barbara allowed 4 hours.

     5. (5)

        Car washing: both agreed that this should be allowed fortnightly.

     6. (6)

        Grocery delivery: Ms Zeman said no allowance; Ms Barbara said weekly.

178. [396]

     After watching the surveillance, the experts’ respective positions were:

     1. (1)

        Meal preparation: Ms Zeman did not allow any hours for meal preparation; Ms Barbara allowed 3 hours per week.

     2. (2)

        Domestic cleaning: Ms Zeman reduced her allowance to 1.5 hours per week; Ms Barbara maintained 3 hours per week.

     3. (3)

        Laundry: Ms Zeman reduced her allowance to nothing; Ms Barbara remained at 2 hours per week.

     4. (4)

        Yard and garden: Ms Zeman allowed 2.5 hours per week; Ms Barbara allowed 4 hours per week.

     5. (5)

        Car washing: both experts agreed with fortnightly.

     6. (6)

        Grocery delivery: Ms Zeman made no allowance; Ms Barbara allowed for a $13 weekly delivery fee.

179. [397]

     I have set out my findings in detail under the hearing for past economic loss. The plaintiff’s condition has not changed markedly since phase three of her past domestic care, and I rely on what I said in respect of that period. I take into account that the plaintiff’s children are teenagers and capable of taking care of most of their domestic needs. I allow 1 hour for meal preparation, 3 hours for domestic cleaning and laundry, 3 hours for yard and garden maintenance, and fortnightly car washing and grocery delivery. The parties are to calculate this amount.

180. [398]

     As previously stated, there is no deduction for vicissitudes of life when assessing damages for future domestic assistance: see Sharman per Gibbs and Stephen JJ.

Judgment

1. [399]

   I enter judgment in favour of the plaintiff. The amount of damages is to be calculated by the parties and my arithmetic is to be checked.

Costs

1. [400]

   Costs are discretionary. Usually costs follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.

2. [401]

   I note that the defendant is entitled to a defence based upon the worker’s compensation payments that have been paid. This amount is to be ascertained by the parties as at the date of judgment.