Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9 Hearing dates: 8, 9, 10, 11, 12, 15, 16, 19 April 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against the first defendant in relation to mine dust exposure at the Poitrel and Moorvale Mines for $1,066,922.11, of which $830,800.00 is attributable to mine dust exposure at the Poitrel Mine and $236,122.11 is attributable to mine dust exposure at the Moorvale Mine. (2) Judgment for the plaintiff against the second defendant in relation to mine dust exposure at the Moorvale Mine for $236,122.11. (3) Judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $1,687,264.74. (4) Order that the dust-related conditions in respect of which an award of further damages may be made against the third defendant (arising from mine dust exposure at the Boggabri Mine) are: (a) Rheumatoid arthritis. (b) Scleroderma. (c) Progressive massive fibrosis. (d) Lung cancer. (5) In addition to order (3) above, judgment for the plaintiff against the third defendant in relation to mine dust exposure at the Blackwater Mine for $326,489.82. (6) Judgment for the plaintiff against the fifth defendant in relation to mine dust exposure at the Boggabri Mine for provisional damages of $783,963.46. (7) Declare that 100% of the sum awarded by the judgment against the fifth defendant is damages to which Part 3 Division 5 of the Workers Compensation Act 1987 (NSW) applies. (8) Order that the dust-related conditions in respect of which an award of further damages may be made against the fifth defendant (arising from mine dust exposure at the Boggabri Mine) are: (a) Rheumatoid arthritis. (b) Scleroderma. (c) Progressive massive fibrosis. (d) Lung cancer. (9) Order the first, second, third and fifth defendants to pay the costs of the plaintiff. (10) Judgment for the fifth defendant against the third defendant on the Amended Fifth Cross Claim in relation to mine dust exposure at the Boggabri Mine for $548,774.42. (11) Order the third defendant to pay the costs of the fifth defendant of and incidental to the Amended Fifth Cross Claim. (12) Grant leave to all defendants to file cross claims within 28 days, if so advised. If any further cross claims are filed, the parties are to inform my Associate so that the cross claims can be listed before me for case management. (13) Liberty to restore the proceedings before me if any party seeks a different costs order based upon an Offer of Compromise or other offer. Catchwords: DUST DISEASES – coal workers pneumoconiosis – silicosis – mixed dust pneumoconiosis – emphysema – chronic obstructive pulmonary disease – psychiatric injury DUST DISEASES – causation – negligence – exposure at multiple open cut coal mines – machine operator – extent of dust exposure – whether smoking caused the lung diseases DUST DISEASES – divisible and indivisible diseases –whether coal workers pneumoconiosis is divisible or indivisible – whether psychiatric injury is divisible –there is a rational basis to apportion psychiatric injury STATUTORY INTERPRETATION – NSW statutory damages regime applicable to coal miners – modified common law damages provisions – whether cap on damages is on nett or gross earnings – whether cap on damages includes or excludes superannuation – whether claim is statute barred – whether provisional damages can be awarded NEGLIGENCE – apportionment between tortfeasors – employer's non-delegable duty of care DAMAGES – general damages – past and future economic loss – past and future superannuation – medical costs – loss of life expectancy – Fox v Wood damages – pain and suffering – psychiatric injury – apportionment of psychiatric injury Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Coal Mine Health and Safety Act 2002 (NSW) Dust Diseases Tribunal Act 1989 (NSW), ss 10(4), 10(5),11A, 12A Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) Motor Accidents Compensation Act 1999 (NSW), s 125(1) Workers Compensation Act 1987 (NSW), ss 4, 15, 16, 35, 149(1), 151D, 151E, 151F, 151G, 151H, 151I, 151J, 151L, 151M, 151S, 151Z, Part 5 Div 3, Pt 5 Div 4, Schedule 6 Part 18, cl 3 Workers Compensation and Rehabilitation Act 2003 (QLD), ss 36A, 305B, 305C, 305D, 306A(1)(a), 306C, 306D, 306E, 306F, 306G, 306H, Part 9 Div 3 Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 6, Pt 19H, cl 26, Sch 7(1) Workers Compensation Legislation Further Amendment Act 2001 (NSW), s 151G Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 7A Cases Cited: Agresta v Sydney Water Corporation [2004] NSWDDT 8 BAE Systems (Operations) Ltd v Konczac [2017] EWCA Civ 118 BB v Helena College Council [2021] WADC 42 BHP Coal Pty Ltd Re The BMA Enterprise Agreement 2022 [2023] FWCA 115 Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189 DC v New South Wales [2016] NSWCA 198 Dingle v Associated Newspapers Ltd [1961] 2 Q.B. 163 Foster & Anor v Cameron [2011] QCA 48 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 Headon v Amaca Pty Ltd [2022] NSWDDT 5 Kaplantzi & Anor v Pascoe [2003] NSWCA 386 Katidis v Meggitt Overseas Ltd (No. 2) [1995] NSWDDT 1 Macquarie Pathology Service Pty Ltd v Sullivan [1995] NSWCA 540 McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341 Mohr v Berrigan Quarries Pty Ltd [1995] NSW DDT 2 Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 Oxley County Council v McDonald [1999] BSWCA 126 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Qantas Airways Ltd v Lisica [2007] NSWCA 371 Reilly v Malabar Electric Pty Ltd [2011] NSWDDT 9 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Thompson v Smiths Shiprepairers Ltd [1984] QB 405 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Texts Cited: Black's Medical Dictionary, 38th ed (1995) Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013) Queensland Parliamentary Coal Workers' Pneumoconiosis Select Committee, Black Lung White Lies: Inquiry into the Re-Identification of Coal Workers' Pneumoconiosis in Queensland, Report No. 2, 55th Parliament (May 2017) R McBean et al, "Radiological Appearance of Coal Mine Dust Lung Disease in Australian Workers" (2018) 62(6) Journal of Medical Imaging and Radiation Oncology 794 The Penguin Medical Encyclopedia, 2nd ed (1982) State Insurance Regulatory Authority, Workers Compensation Benefits Guide, April 2024 Category: Principal judgment Parties: Craig Andrew Keogh (Plaintiff) CPB Contractors Pty Ltd (First Defendant) Campbell Mining Services Pty Ltd (Second Defendant) Downer EDI Mining Pty Ltd (Third Defendant) Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant) Representation: Counsel: S Tzouganatos/V Boutas (Plaintiff) D Talintyre (First Defendant re Poitrel Mine) I Griscti (First Defendant re Moorvale Mine) D Talintyre (Second Defendant re Moorvale Mine)) D Talintyre (Third Defendant re Blackwater Mine) G Rundle (Third Defendant re Boggabri Mine) T Rowles (Fifth Defendant re Boggabri Mine)