A MOUNT Arthur Coal worker seeking more than $1.35 million in lost future earnings after a 2013 workplace injury was filmed multiple times between 2014 and 2017 as the company fought liability for her claim.
Filming outside the workplace started nearly six months before the woman, 47, left the Muswellbrook coal mine in February, 2015. Film showing her driving, socialising and shopping caused a NSW Supreme Court judge this week to "reluctantly" accept she exaggerated her disabilities, despite finding the mine liable for her injuries.
The woman told her boss she was in "a bloody world of hurt" after she was thrown around in her grader on the night of March 6, 2013 after hitting a "whole heap of crap laminations", or holes, in a Mount Arthur internal road after a period of extremely wet weather.
By February, 2015 the woman worked her last day after alleging serious physical and psychological injuries from the original incident, and a return to work which included a period when she "sat in the crib room for nine hours a day, four days a week" until she was told there was no longer work for her.
NSW Supreme Court Justice Ian Harrison this week rejected Mount Arthur Coal's case that the woman was responsible for the injuries after driving the grader into a windrow, or raised soil barrier preventing vehicles from leaving the road and falling into the pit.
The BHP mine was negligent and responsible for the woman's back and hip injuries because it was known internal roads were "somewhat damaged" because of the wet spell and other operators using the road also failed to notice the holes, Justice Harrison found.
Immediately after the woman's accident a grader was called to fix the area.
"It is my view that it was clearly foreseeable that if (the woman) was sent out to drive on such damaged roads in the dark, then the type of incident that she suffered was likely to occur," Justice Harrison said.
It is my view that it was clearly foreseeable that if (the woman) was sent out to drive on such damaged roads in the dark, then the type of incident that she suffered was likely to occur.
NSW Supreme Court Justice Ian Harrison.
Mount Arthur Coal and the woman will negotiate a final payout figure after Justice Harrison noted the woman was seeking $1.35 million after telling the court she could not work again because of her disabilities. The coal mine argued the woman could still work, and argued her future losses were $300,000 because she could no longer work in a well-paid mine job.
Justice Harrison assessed her non-economic losses as $171,000 since the incident and leaving Mount Arthur, but said the film had an impact on the damages to be awarded.
"I have reluctantly formed the view that when (the woman) gave evidence as to her disabilities, she exaggerated them. When she was giving evidence in the witness box, she frequently grimaced, winced and sighed, giving the impression that she was consistently in severe pain," Justice Harrison said.
"She changed position from sitting to standing from time to time, which I accept was because of her genuine discomfort. However, the video surveillance shows that she is capable of doing more than she says she can."
In film taken on September 4, 2014, nearly six months before losing her job, the woman was filmed smoking a cigarette outside a hotel, "standing and not using any structure to support herself"
The woman was filmed in 2015 driving her car for up to 90 minutes at a time, despite telling the court she could only drive for 30 minutes because of the pain.
The woman was also filmed in a Woolworths supermarket at Scone pushing a shopping trolley of groceries which she unloaded into her car. Before the film was shown in court the woman gave evidence she needed help to do the grocery shopping.
Justice Harrison accepted Mount Arthur Coal's argument that the woman could work in future, and rejected her argument that she could never work again.
"It is my view that she is capable of doing more than she says she can, as demonstrated on the video surveillance," he said.
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