Coal miner decision sets precedent for assessment of physical and psychiatric damages in dust related claims

In brief:

• The NSW Dust Diseases Tribunal delivers first common law assessment for coal mine dust lung diseases in New South Wales and Queensland.
• Divisibility/invisibility of related diseases and apportionment of physical and subsequent psychiatric injury tested
• The decision is indicative of an upward shift in general damages for dust disease claims; however reinforces the need for each case to be examined on own factual evidence.

The NSW Dust Diseases Tribunal has ventured into uncharted legal territory by delivering the first common law assessment for coal mine dust lung diseases in New South Wales and Queensland.

The decision relates to the case of a Plaintiff whose prolonged exposure to dust in Queensland and New South Wales coal mines led to severe physical and psychiatric health issues. Notably, the Tribunal awarded the Plaintiff AUD750,000 in general damages, setting a significant precedent in the realm of dust-related injury claims.

Background

Mr Keogh, a 52-year-old coal miner, filed an Amended Statement of Claim seeking damages for injuries allegedly caused by prolonged dust exposure during his work in coal mines in Queensland and New South Wales.

Each of the defendants were found to have been liable.

Divisibility/indivisibility of diseases

Russell SC DCJ conducted a thorough assessment of each of the diseases, and in doing so, formed a view on the issue of divisibility/indivisibility, summarised as follows:

• Coal Workers Pneumoconiosis (CWP): caused by long-term exposure to coal dust, leading to lung scarring. CWP is preventable by avoiding dust exposure and develops slowly.
• Silicosis: results from inhaling respirable crystalline silica, leading to lung scarring. It has no cure but early detection can slow its progression.
• Mixed Dust Pneumoconiosis: Results from exposure to both coal and silica dust, exhibiting features of both CWP and silicosis.
• Chronic Obstructive Pulmonary Disease (COPD): Characterised by airway narrowing and airflow reduction, often associated with dust diseases.
• Emphysema: A subtype of COPD involving lung over-expansion and destruction of lung walls.
• Adjustment Disorder with Mixed Anxiety and Depressive Mood and Moderate/Major Depressive Disorder: Psychiatric conditions that Mr Keogh attributed to his physical health issues.

His Honour stated that historically, claims involving pneumoconiosis and similar dust-related diseases have been considered divisible and that the diseases claimed were divisible.

Each defendant is therefore liable only for the specific damage they caused. For instance, if exposure to dust from a particular mine is proven to have contributed to a specific condition, the damages can be apportioned accordingly.

His Honour acknowledged that Courts have found psychiatric injuries were indivisible¹ in circumstances where they can result from a combination of physical and psychological stressors. However, the evidence must demonstrate a rational basis for apportioning psychiatric damage. His Honour indicated that Courts may consider psychiatric harm indivisible if the conditions are interrelated, making it challenging to separate out the contributions from each specific exposure or stressor.

However, His Honour distinguished this case by noting that each defendant contributed to the physical damage in the specified proportions, and consequently, in circumstances where the experts agreed that the psychiatric injury was secondary to the dust diseases, each should also be held liable for the psychiatric damage in those same proportions.

Notably, His Honour found that if respiratory conditions are deemed divisible but psychiatric injury is considered indivisible, it would require separate assessments for physical and psychiatric damages. This would lead to apportioned damages for the physical injuries while leaving the psychiatric damages un-apportioned. His Honour stated [at 254]:

"Because there is evidence to enable a rational basis to be found for apportioning the psychiatric injury, I find that the psychiatric injury, just like the respiratory damage, constitutes divisible disease."

Apportionment

In assessing the apportionment of responsibility for Mr. Keogh's injuries and disabilities, His Honour considered the evidence and applied a precise methodology to determine each defendant's share of liability, by taking into account the time spent at each mine (in months rather than days), multiplied by the corresponding dust exposure levels.

The resulting table is as follows:

Damages assessment

Whilst the entirety of the Plaintiff's damages are being finalised, we note the following salient points arise in relation to His Honour's assessment of damages.

In assessing general damages, His Honour acknowledged the significant impact these conditions have had on Mr Keogh's life and his ability to work. For the New South Wales exposure, His Honour applied a common law approach to assess damages for pain and suffering, as well as loss of enjoyment. His Honour noted that the Tribunal was in unchartered territory, as there have been no prior common law assessments for coal mine dust lung diseases.

Having accepted Mr Keogh's evidence concerning his respiratory and psychiatric pain and suffering, the impact of his conditions, and the progression of his respiratory difficulties, the Tribunal recognised that Mr Keogh is expected to experience increasing debilitation over his lifetime due to his coal mine dust lung diseases, as well as the associated mental and emotional effects.

The Defendants submitted that the appropriate range for general damages was AUD350,000 to AUD400,000, which the Tribunal considered was too low. The Tribunal subsequently accepted the Plaintiff's submissions and awarded AUD750,000 for general damages, plus interest.

This decision is significant and is indicative of the upward shift we have observed in awards of general damages for dust diseases. However, it is important to remember that each case must be examined in accordance with its own factual merits and evidence.

Read a copy of the judgment.

Footnote

¹ BB v Helena College Council [2021] WADC 42; DC v New South Wales [2016] NSWCA 198.

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