Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219 Hearing dates: 18 May 2020 Decision date: 21 September 2020 Before: Macfarlan JA at [1]; McCallum JA at [2]; Simpson AJA at [79] Decision: (1) Allow the appeal; (2) Set aside the judgment of the primary judge entered on 30 August 2019; (3) Set aside the costs order entered on 26 September 2019; (4) Remit the proceedings to the primary judge to assess damages in accordance with these reasons; (5) Order the respondent to pay the appellant's costs of the proceedings and the appeal. Catchwords: NEGLIGENCE — General principles — where appellant injured while climbing down from top of load haul dump machine ("LHD") — whether employer created an unnecessary risk of injury by modifying LHD prior to the injury — where modification required appellant to climb to top of LHD to refuel where previously refuelling was done from the ground — where no evidence that any form of risk assessment was carried out — where rungs and handholds used for climbing already attached to LHD and considered adequate safeguards by employer TORTS — General principles — Contributory negligence — where employer relied on fact that appellant had climb to top of machine without incident numerous times prior to injury — where employer alleged that injury would not have occurred if appellant had been exercising sufficient care for his own safety — where appellant gave evidence that he had been firmly gripping the handholds when descending from top of LHD Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(1)(f) Evidence Act 1995 (NSW), s 136 Workers Compensation Act 1987 (NSW) Cases Cited: Commissioner for Railways v Halley (1978) 20 ALR 409 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37‑9; [1964] HCA 16 Category: Principal judgment Parties: Rodney John Davies (Appellant) Whitehaven Coal Mining Limited (Respondent) Representation: Counsel: Ian D Roberts SC (Appellant) D R Benson (Appellant) L King SC (Respondent) T M Rowles (Respondent)