D’Herville v Mt Arthur Coal Pty Ltd (NSWSC 2021)

Key Takeaways

Although this case is dependent on its facts and the quality of the worker’s evidence, it demonstrates that a judge may take into account contemporaneous documentation to assist in determining the veracity of a worker.

It is also shows that a worksite is not expected to be perfect and devoid of any irregularities, especially in the mining industry where there are very heavy machines in use and the defect can be shown to be nothing more than normal wear and tear.

Brief Facts

The defendant operates an open-cut coal mine in the Hunter Valley. The worker was employed by the defendant as a haul truck operator, driving a rigid body dump truck with a capacity of 500 tonnes. The worker’s task was to operate the truck to carry overburden which was being excavated to expose the coal seam. The internal roadways are constructed of compacted dirt, rocks and gravel.

The worker alleged that she suffered injury when she drove her truck into a large “ditch” on the haul road which caused her to be thrown about within the cabin of the truck causing injury notwithstanding that she was wearing a seatbelt. On the worker’s case the “ditch” had been created by a bulldozer operator attempting to repair a defect in the haul road. The case was framed as the defendant being vicariously liable for the actions of the bulldozer operator. The defendant accepted that the worker had suffered injury, but argued that there was no ditch, just a rough patch of road.

Judgment

The trial Judge was not satisfied on the balance of probabilities that the worker had established that she was injured as a result of the negligence of the bulldozer driver. He did not accept her evidence that she saw a bulldozer operating out of position on the access road as she returned from the dump, principally because there was no mention of it in her contemporaneous reports of the injury, incident reports and medical records. In any event, her evidence did not allow the judge to draw a positive inference on the probabilities that the bulldozer was performing unauthorised roadworks by which a large hole or “ditch” was created in the trafficable surface of the road.

The judge was not satisfied that the even violent shaking of a very large truck on gravel roads subject to wear and tear is probative of negligence on the part of someone for whom the defendant would be vicariously liable. Nor was he of the view that the evidence is such as would be capable of supporting a compelling inference of negligence, on the probabilities.

Contemporaneous records which made no mention of the bulldozer and the worker’s evidence about them under cross-examination caused the judge to seriously question the reliability of her account that her injury was suffered when the left front wheel of her dump truck went into a single deep hole, ditch or depression, rather than through undue vibration or vigorous shaking when crossing a rough section of gravel road.

The worker did not answer direct questions about these various accounts directly and there was a degree of avoidance and evasion. At times she seemed unable to engage with the cross-examiner which the Judge regarded as another means of avoiding the questions.

The judge had the firm impression that her evidence about the involvement of the bulldozer was an ex post facto reconstruction to explain the presence of a single deep hole on the roadway as part of her case.

Although he accepted that she suffered an injury because she was vigorously shaken up when she drove her truck through a patch of road which was rough due to normal wear, he was not convinced that the injury was occasioned by the negligence of the defendant. He entered a verdict for the defendant.

Comment

Contemporaneous documentation is important where there are questions surrounding the veracity of a worker’s evidence, particularly in circumstances where a worker is evasive when responding to questioning.