A MOUNT Arthur coal mine contract truck driver who alleges he suffered serious spine and neck injuries in a workplace incident has had his negligence case moved to the Supreme Court because likely damages, if he wins the case, will be greater than $750,000.
Supreme Court Justice Monika Schmidt ordered that Alan Nightingale's case against the Muswellbrook BHP mine be transferred from the District Court to the higher court after finding his likely total damages would exceed $1.2 million if he succeeds, well above the District Court cap of $750,000.
Justice Schmidt questioned the mining company's expert view that there was no evidence supporting Mr Nightingale's claim of disc damage because of the incident, and that any spinal changes were due to ageing and were "genetically based".
Justice Schmidt rejected that there was no evidence and said the mining company's expert evidence was "difficult to understand".
"That a change to the spine, whether caused by ageing or genetics, may be permanently aggravated by a traumatic event appears to be perfectly possible. An obvious example is where trauma causes a fracture, which does not heal well," she said.
"It is by no means certain that the opinion of the mining company's expert will be preferred," Justice Schmidt said.
Mr Nightingale initiated legal action against Mount Arthur Coal in 2017 after he was injured at the mine while working as a contract driver for a labour hire company.
It is by no means certain that the opinion of the mining company's expert will be preferred.
- NSW Supreme Court Justice Monika Schmidt.
The incident occurred while the truck he was driving was being loaded by a mine employee operating a face shovel excavator.
Mr Nightingale alleges he suffered a substantial injury to his neck resulting in a major depressive disorder and ongoing physical incapacity preventing him from full-time work.
Mr Nightingale sought the mining company's consent to orders keeping the matter in the District Court but agreeing to raise the damages cap beyond the $750,000. The company refused.
"Keeping the matter in the District Court would certainly be quicker and cheaper, but I am satisfied that in the circumstances I have discussed, it would not be just," Justice Schmidt said.
"That conclusion is reinforced when the mining company's refusal to consent to that court awarding damages in excess of its jurisdictional limit, is also taken into account."
Justice Schmidt rejected Mount Arthur Coal's request that Mr Nightingale pay the company's costs to have the matter transferred from the District Court as "the price of his success".
She accepted Mr Nightingale's submission that the costs of the transfer application should be deferred until the matter is finalised and paid by the losing party.
