Ganassin v Ulan Coal Mines Limited [2020] NSWDC 652

District Court New South Wales

Medium Neutral Citation: Ganassin v Ulan Coal Mines Limited [2020] NSWDC 652 Hearing dates: 10-12, 15, 17 and 18 June 2020 Plaintiff's written submissions 18 June 2020 and 25 September 2020 Defendant's written submissions 16 June 2020 and 28 September 2020 Decision date: 27 October 2020 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: I make the following orders:- (1) There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated. (2) I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days. (3) Parties have liberty to lodge with my Associate in Chambers any agreed Consent Orders. (4) In the event of any disagreement, the parties are to: (a) Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days. (b) Submit to my Associate within the period referred to in (4)(a) above their proposed orders, and any documents and written submissions proposed to be relied upon. Catchwords: WORK INJURY DAMAGES – Where Plaintiff works in a mine for the Defendant – Plaintiff encounters a fire whilst working underground in the mine and extinguishes the fire – Whether breach of statutory duty – Whether Defendant had duty of care to prevent psychological injury – Whether psychological injury was foreseeable – Whether the fire was caused as a result of the Defendant's negligence – Whether injuries caused by the Plaintiff's method for extinguishing the fire and failing to don self-rescuer – Whether the Defendant failed to properly and adequately train the Plaintiff – Whether the Plaintiff acted in the "agony of the moment" DAMAGES – Whether the Plaintiff ceased work as a result of the injuries sustained – Whether the Plaintiff suffered and developed PTSD as a result of the Defendant's negligence – Where Plaintiff has a history of depression prior to the incident – Whether injuries caused by the Plaintiff's dealing with the insurer – Application of s 151G – Vicissitudes of life – 15% reduction for past economic loss – 20% reduction for future economic loss Legislation Cited: Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 3 Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), clauses 9, 23, 44A, 100 Work Health and Safety (Mines) Act 2013 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schedule 4 Workers Compensation Act 1987 (NSW) ss 149, 151G, 151H, Schedule 6 Cases Cited: Abdallah v Newton (1998) 28 MVR 364 at 365-366 Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 Brighten v Trainao [2019] NSWCA 168 Brisbane Youth Service Inc v Beven [2017] QCA 211; (2017) 270 IR 304 Byrnes v Snare (1986) 4 MVR 97 Commonwealth v Mclean (1996) 41 NSWLR 389 Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219 Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168 Fox v Wood (1981) 148 CLR 438 H v State of New South Wales [2009] NSWDC 193 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 Kember v Thackrah [2000] WASCA 198 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 March v E and MH Stramare Pty Ltd (1991) 171 CLR 506 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 Nestle Australia Ltd v McDougall [1998] NSWCA 158 O'Connor v Cmr for Government Transport (1958) 100 CLR 225 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Sangha v Baxter (2009) 52 MVR 492 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 Skea v NRMA Insurance Ltd [2005] ACTCA 9 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stuart v Walsh [2012] NSWCA 186 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 The Bywell Castle (1878) 4 PD 219 Turner v South Australia (1982) 56 ALJR 839 Warth v Lafsky [2014] NSWCA 94 Webb v Edwards [2018] NSWDC 67 Wingrove & Co Pty Ltd v Sheehy (1961) 35 ALJR 313 Texts Cited: Sapideen, Carolyn, Prue Vines (eds), Fleming's The Law of Torts (Lawbook Co, 10th ed, 2011) Category: Principal judgment Parties: Roberto Ganassin (Plaintiff) Ulan Coal Mines Limited (Defendant) Representation: Counsel: Mr R O'Keefe (Plaintiff) Mr L King SC (Defendant)