The New South Wales Supreme Court has ruled that Whitehaven Coal is not liable for failing to identify a soft spot on a haul road at the Werris Creek mine where a driver was injured.
The court said that the 2013 accident “(highlighted) the importance of contemporaneous documents” from mining companies to ascertain the exact record of accidents that occurred on site.
The employee was operating a dump truck on site as part of her duties, and stated that a soft spot in the road caused her to jolt and hurt her shoulder and back.
She alleged that Whitehaven had failed to detect this spot, contrary to the court’s judgment that it had “issues with the plaintiff’s” credibility and that part of her personal responsibility to care for her own safety was to drive to the conditions.
The court was satisfied with a statement from Whitehaven open cut examiner (OCE) on the day the event occurred, that he had conducted his pre-shift safety inspection, estimating the speed required to safely travel on the roads to be 40 kilometres per hour.
The OCE had also checked the haul road for soft spots first thing on the day following the accident and was not able to locate one, leading the judge to find it “highly improbable” that there was one there.
The employee reported that she could not estimate the speed at which she was travelling.
“I accept neither that she hit a soft spot nor that she was unable to estimate her speed at the time,” Judge Christine Adamson said.
The judge also found her evidence to be inconsistent and accepted that her injury was not part of any negligence from Whitehaven.
The employee described the nature of her injury as “knocked out”, but made no allegation that she had lost consciousness.
“I regain the plaintiff as unreliable rather than strictly dishonest,” Judge Adamson stated.
“She appeared to have constructed a narrative which would make the defendant responsible for many of her present difficulties, underplaying the importance of other factors such as her pre-existing low back pain.
“It also led to her reconstructing the narrative of the events of 19 October 2013 and the following weekend to enhance the impact of the event and the size of the imperfection in the road.”