Haul road maintenance – 'no go' for a 'blow out'!

Over the years, Justin Houlihan and I have acted for many dump truck operators who have been injured driving over rough haul roads in open cut coal mines in Central Queensland.

It has been many years since such a case has been determined by a Court in Queensland as they generally get resolved prior to trial.

A recent decision of the New South Wales Supreme Court highlights the evidence necessary to prove these cases and again demonstrates that the mere acceptance of a worker's compensation claim by an employer, does not necessarily mean that the employer will be held liable in a negligence suit for causing the injury.

In Kerr –v– Whitehaven Coal Mining Ltd [2020] NSWSC 1096, the operator claimed to have suffered injuries to her upper back and shoulder when her 793 dump truck struck a "soft spot" in the haul road as she was heading to the dump with a load of overburden at a mine in the Hunter Valley.

She claimed that Whitehaven Coal was responsible for her injuries for failing to conduct a proper inspection of the haul road at the commencement of her shift.

Whitehaven argued that the haul road had been inspected and that no soft spot had been detected. They produced several witness statements in support. There had never been any similar incidents in the past.

In addition, Whitehaven also argued that the plaintiff had been driving too fast for conditions and that she had therefore contributed to her own injuries.

The Judge decided that Whitehaven was not liable for her claim as the operator had not established that there was a soft spot in the road. He found that her evidence at the hearing was "unreliable" and that Whitehaven had conducted proper inspections of the haul road.

Interestingly, the Judge found that the operator had been driving too fast and would have knocked off 30% for contributory negligence if she had won the case against Whitehaven.

Unfortunately for her, the operator also had to pay Whitehaven's costs of the legal proceedings which were very significant.

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