Butt v Liebherr Australia Pty Limited - [2015] NSWDC 3

District Court

New South Wales

Medium Neutral Citation: Butt v Liebherr Australia Pty Limited [2015] NSWDC 3
Hearing dates: 19 August 2014
Decision date: 02 February 2015
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Award for:
(a) $5,715.40 for 10.8% impairment of plaintiff’s neck;
(b) $7,408.80 for 7% loss of efficient use of plaintiff’s right arm at or above the elbow;
(c) $7938.00 for 10% impairment of plaintiff’s back;
(d) $11,907.00 under s 67 for pain and suffering resulting from those impairments and that loss.
Catchwords: WORKERS COMPENSATION – Coal miners – Whether plaintiff a coal miner for the purposes of Sch 6, Pt 18 of the Workers Compensation Act 1987 – Whether plaintiff was a worker employed in or about a coal mine
Legislation Cited: Coal Mines Regulation Act 1982
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1926
Workers Compensation Act 1987
Workers Compensation (General) Regulation 1995
Workers Compensation Regulation 2003
Workers Compensation Regulation 2010
Cases Cited: Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177
Baggs v Waratah Engineering Pty Ltd [2014] HCA Trans 108
Brown v Barnard and Brown Pty Ltd (1998) 17 NSWCCR 275
Benson v Lancashire and Yorkshire Railway Coy [1904] 1 AC 242
Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; (2005) 2 DDCR 744
Fekonja v Lucsan Pty Ltd (1994) 10 NSWCCR 339
Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744
Maurino v Amberlor Pty Ltd (1996) 14 NSWCCR 16
Nolan v Porter and Sons (1910) 2 BWCC 106 (Eng. CA).
Pilgrim v Ellavale Engineering Pty Ltd (2003) 25 NSWCCR 521
Presland v Ellavale Engineering Pty Ltd (2005) 3 DDCR 179
Roberts v Fuchs Lubricants (Australasia) Pty Ltd (2002) 24 NSWCCR 125
Select Civil (Kiama) Pty Ltd v Kearney [2012] NSWCA 320
Smith v Brown (1998) 16 NSWCCR 492
Weaver v Tredegar Iron and Coal Coy Ltd [1940] AC 955
Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427
Texts Cited: C P Mills, Workers Compensation New South Wales (2nd ed 1979, Butterworths)
Category: Principal judgment
Parties: Stanley George Butt (Plaintiff)
Liebherr Australia Pty Limited (Defendant)
Representation:
Counsel:
Mr D Benson (Plaintiff)
Mr M Newton (Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s): RJ261/13

Judgment

Cur Adv Vult

By an amended statement of claim filed in court on 19 August 2014, the plaintiff claims:

(a) lump sum compensation under the Workers Compensation Act 1987, s 66, for:
(i) $6,350.40 for 12% impairment of his neck,
(ii) $10,584.00 for 10% permanent loss of efficient use of his right arm at or above the elbow, and
(iii) $7,938.00 for 10% permanent impairment of his back, and

(b) a lump sum under s 67 of that Act of $19,860.

The plaintiff relies on an injury which he received on 12 October 2010 on a journey to work on that day at the Mt Arthur open-cut coal mine near Muswellbrook. I would normally not reserve a judgment of this nature but I was asked to do so by the parties because they wished to provide written submissions on a question of law. At the conclusion of the evidence given on 19 August 2014, I set the following timetable:

(a) defendant to file and serve written submissions by 3 October 2014,
(b) plaintiff to file and serve written submissions by 17 October 2014,
(c) defendant to file and serve any submissions in reply by 24 October 2014.

Displaying the usual timeliness one has come to expect in this Court:

(a) the defendant filed written submissions on 22 October 2014,
(b) the plaintiff filed written submissions on 30 October 2014,
(c) I was not advised until 15 December 2014 that the defendant did not wish to file submissions in reply.

The legal issue

The first plea in the defendant’s amended defence filed on 13 March 2014 is this:

“That the defendant disputes the jurisdiction of the Court to consider the Plaintiff’s claim as the Plaintiff is not a coal miner for the purposes of Schedule 6, Part 18 of the Workers Compensation Act 1987.”

The plea is poorly drafted. This Court has jurisdiction to determine whether at the time of the injury relied upon by the plaintiff he was a “worker employed in or about a mine”, the terminology used in Sch 6, Pt 18 of the Workers Compensation Act 1987. Section 3(1) of the same Act defines the word “mine” thus:

“‘mine’ means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002 , but does not include any place that, in accordance with section 8 (3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.”

There is no dispute that the Mount Arthur open-cut coal mine at Lot 14 Thomas Mitchell Drive, Muswellbrook is a mine that falls within that definition. The legal issue for my determination is whether when travelling to work at that mine on 12 October 2010, the plaintiff was a “worker in or about” that coal mine. The issue is an important one. Should the present plaintiff fail in his claim, many workers in the plaintiff’s position would be adversely affected.

Facts on liability

By trade, the plaintiff is a fitting machinist and fitter. More recently he has qualified as an occupational health and safety (“OHS”) officer. In the past he worked for Resco Engineering at Muswellbrook and then for J & S Engineering at Maitland as an OHS officer. On 17 May 2010 he commenced working for the defendant (date given in exhibit 6). At the time of his injury the plaintiff had worked for the defendant for almost five months. The plaintiff said that his position was a full-time position as a “health and safety environmental officer at Mr Arthur coal” (T 3.05). His normal working week was Monday to Friday, commencing at 6am and ending “about 5.30” pm. He also worked on “some Saturdays”. Whilst working for the defendant the plaintiff lived at 3/8 Port Cove, Gilleston Heights, which is south of Maitland, east of the Maitland – Cessnock Road (exact address in exhibit 6 and other documentary exhibits).
The defendant is not the owner or operator of the Mr Arthur coal mine (“the colliery”). The defendant provided to the colliery heavy mining trucks. Those trucks were bigger than Euclid trucks, “300 tonne, 350 tonne trucks” (T 8.48). The defendant also provided maintenance fitters for those trucks. There were “about 12” maintenance fitters on each of the four shifts worked at the colliery. There were “40 to 50” Liebherr trucks on site. Usually 3 or 4 trucks were being serviced in the on-site workshop at any one time.
The defendant had on the mining site a demountable building which was used as its office. The plaintiff spent between a fifth and a quarter of his working time in the defendant’s on-site office. The majority of his time was spent in the workshop which was “shared … with Mt Arthur Coal workers” (T 5.02). On occasion the plaintiff was called to work in the open-cut mine pit if “there was a major breakdown”. The plaintiff worked both in the workshop and in the pit “to ensure that safety protocols [were] followed” (T 5.35). The plaintiff estimated that he would spend one to two days per week in the open-cut pit which he described as “a huge hole”, “hundreds of feet” deep (T 6). Overburden and coal were being extracted, loaded onto either Liebherr trucks or Caterpillar trucks which took their loads to dump sites for distribution. There was a constant stream of “hundreds” of trucks in and out of the pit.
The plaintiff’s job required him to be aware of certain provisions of the Coal Mine Health and Safety Act 2002 (T 7.11). Part of his job required him to ensure compliance with provisions of that Act. The plaintiff was a member of the OHS committee at the colliery and attended its monthly meetings (T 10.45).
The plaintiff’s evidence provides some vignettes of his job. He said this about being called to a breakdown in the pit:

“If they had a major job going, like a major breakdown, I generally went out with the fitters to ensure that they locked the machine out correctly, they followed the pit rules, the isolation, of course, putting the signage out and ensure that they worked safely and correctly.” (T 6.07).”

If the plaintiff went out into the pit it would “probably” be for a half day or a full day (T 5.22). He described his day-to-day work in the workshop in this fashion:

“… just ensuring they worked safely. If they had any injuries I would escort them to the medical centre, do safety observations, which was watching them doing the particular task, making sure they were doing it safely, following work instructions, making sure they didn’t work past their … 12 hours…” (T 10.30)

This medical centre was the colliery’s first aid centre.

The defendant had a “build pad”, not in the pit itself but in the mining site, where Liebherr trucks were being assembled by Liebherr employees and contractors. The colliery was ordering more machines and a newer version of the defendant’s truck was being introduced. The plaintiff’s duties also required him to attend the “build pad”.
The plaintiff was treated just like other workers at the colliery. When he commenced at the colliery he was “inducted onto the site”. (T 7.21). His daily routine commenced at the colliery by his “clocking in” at the “swiping station” (T 11.17) where there was compulsory drug and alcohol testing (T 29.02). He then attended the compulsory “toolbox meeting” for all who worked in the colliery. That was conducted in the “major lunch room” by the shift supervisor who was “generally a Mt Arthur coal supervisor”. If there were a major issue to be discussed, the meeting would be attended by the colliery’s maintenance engineer, Mr Jeff Mackie. When asked what the colliery shift supervisor would discuss the plaintiff said this:

“Any safety incidents from the previous day, any major breakdowns from the previous day, any handovers from the previous shift, like, work, what was happening in the pit that day, if they scheduled any blasting, what area, what time, so you didn't go into that area, of course.” (T 12.04)

After the toolbox meeting, the Liebherr personnel had their own smaller safety meeting in the workshop (T 11.36, 11.44). The plaintiff had daily interaction with the colliery’s direct employees (T 10.40).

Finally, it ought be noted that there is no evidence that the plaintiff worked for the defendant anywhere else than at the Mr Arthur colliery. I have no hesitation in finding that the plaintiff was employed in or about a coal mine and that, accordingly, he is to be compensated as a coalminer.

The journey

On page 2 of his written submissions, Mr Newton observed:

“His Honour is quite correct in asking the parties to produce a map for the purposes of some certainty (p 28.30). The parties shall endeavour to agree factually as to the distance and time by car from the plaintiff’s home to the accident site, and from the accident site to the front gate of the Mt Arthur coal mine site.”

This pious expectation was never fulfilled! In Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427 (“Baggs”), Sackville AJA took judicial notice of the fact that the Pike River coal mine is about 45kms from Greymouth pursuant to s 144(1) of the Evidence Act 1995. As a New South Wales judge hearing cases in New South Wales, I believe I can take judicial notice of what maps of New South Wales tell me, under the same provision. I shall do so in this case. I have taken judicial notice of the site of Mr Arthur colliery from a map. I have also taken judicial notice of the site of the suburb of Gillieston Heights from a map. That suburb is about 2 kms south of Maitland. Consulting a larger scale map gives me the following data:

Maitland to Branxton    28 kms
Branxton to Singleton    24 kms
Singleton to turnoff    39 kms

“Turnoff” is where one turns off the New England highway onto Thomas Mitchell Drive. I estimate the distance along that road to the Mt Arthur Colliery as 4 kms. Accordingly, the total distance between the plaintiff’s place of abode and the colliery is the sum of 2 + 28 + 24 + 39 + 4, i.e. 97 kms. The plaintiff’s injury occurred at Whittingham on the New England Highway. That locality is 7 kms south-east of Singleton. The distance from the plaintiff’s place of abode to Whittingham is the sum of 2 + 28 + 17, i.e. 47 kms. The site of the accident has been described in a number of ways:

(i) the intersection of Whittingham Road and the Highway (T 12.26),
(ii) New England Highway/Golden Highway (exhibit G, the plaintiff’s injury claim form),
(iii) Corner of Mitchell Line Road and New England Highway, Whittingham (exhibit H, “Incident Report”, I infer, generated by the colliery).

The intersection of the two highways is 6 kms south-east of Whittingham i.e. 41 kms from the plaintiff’s place of abode. On the evidence before me I can only find that the plaintiff’s injury occurred at an intersection at Whittingham.

The copying of exhibit H has been poor and the end of each line has been truncated. Some lines can be reconstructed. Any suspension points in the following quotation represents something that cannot be reconstructed:

“Stan was driving to work at 0510 am along the New England Highway in his Holden [Astra]. Stan stated he was following a semi-trailer truck in the right hand lane, which [was slowing] down to exit off the New England Highway onto Mitchell Line Road, (Approximate [Speed] … km/hr. Conditions at the time was dark and Stan did not see the large pot hole [which] covered the whole of the right hand lane. Stan’s Holden Astra struck the pot hole [causing] his vehicle to immediately veer left off the road into a tree. Police and emergency [services] attended the scene and Stan was transported to hospital by Emergency Services [Helicopter].”

That vivid description is consistent with the plaintiff’s evidence. The same document goes on to record this:

“Large pot hole in the road was temporarily filled in by RTA and permanent heavy patch repairs completed later in the night 12/10/2010.”

The plaintiff told me that he estimated his speed at the time of hitting the pot hole as in the range of 60 to 70 kph. The part of his vehicle (which was written off) which hit the tree was the right hand front panel and the driver’s door. Emergency services personnel had to cut the plaintiff out of the car.

This accident happened on a Tuesday morning. The inference I draw from the evidence is that the plaintiff worked at the colliery on Monday 11 October 2010. The plaintiff gave no evidence as to distances. However he told me in cross-examination that the journey to the colliery from his place of abode took approximately 1 hour and 10 minutes and that he had been travelling for either 30 minutes or 40 minutes before the accident. That evidence is consistent with the findings I made in [11]. The plaintiff had completed a little less than half of his journey to work at the time of the accident. He still had about 50kms to travel to arrive at the colliery gate.
The defendant does not dispute that the plaintiff was injured on a periodic journey between his place of abode and his place of employment. The plaintiff was travelling on his usual route at the usual hour. There is no suggestion of any interruption or deviation in the journey. There is no dispute that had the plaintiff reached the colliery on 12 October 2010 he would have undertaken work in or about a coal mine. Nevertheless, the defendant says that as the plaintiff was not a collier employed by the colliery he is not entitled to coal miner’s benefits for injuries the plaintiff sustained. Antecedent to Baggs I would have given such an argument short shrift.

Journey provisions for coal miners

One of the delights of sitting in the Coal Miners’ Workers Compensation List is the constant search to find the applicable law. For example major changes to the Workers Compensation Act 1987 (“the 1987 Act”) were made by Act No 120 of 1996 (“1996 amendments”). Some amendments came into force on 12 January 1997 and others 1 March 1997. Act No 4 of 1997 inserted Sch 6, Pt 18 cl 2 which commenced retrospectively on 3 December 1996, the date of the Royal Assent to Act No 120 of 1996. That clause is in the following terms:

“2 Regulations to modify or disapply 1996 amendments in relation to coal miners
(1) In this clause:
"the 1996 amendments" means the amendments made to this Act by the WorkCover Legislation Amendment Act 1996 except the amendments made by Schedule 1.3 (Journey claims) to that Act.
(2) The regulations may make provision for or with respect to either or both of the following:
(a) modifying any of the 1996 amendments in their application to or in respect of workers employed in or about a mine,
(b) exempting any such workers from the operation of any of the 1996 amendments.

(3) A provision referred to in subclause (2) may, if the regulations so provide, take effect as from the date of assent to the WorkCover Legislation Amendment Act 1996 or a later day.”

The first regulation made under this clause was the Workers Compensation (General) Regulation 1995 which can be found at (2002) 24 NSW CCR 126 [2]. That Regulation was repealed and replaced by the Workers Compensation Regulation 2003. Clauses 203 and 213 of that Regulation are these:

“203 Exemptions for coal miners-1996 amendments
A worker employed in or about a mine is exempt from the operation of the amendments made by the following provisions of the WorkCover Legislation Amendment Act 1996, with effect from the date of assent to that Act:
(a) Schedule 1.2 (Employment required to be substantial contributing factor),
(b) Schedule 1.4 (Reduction in maximum lump sum compensation amounts),
(c) Schedule 1.6 (Deduction for previous injuries and pre-existing conditions and abnormalities).
[…]
213 Coal miners
(1) The amendments made to the Workers Compensation Act 1987 by the following provisions of the 1996 amending Act do not apply in respect of an injury received before 1 July 1997 by a worker employed in or about a mine:
(a) Schedule 1.2 (Employment required to be substantial contributing factor),
(b) Schedule 1.4 (Reduction in maximum lump sum compensation amounts),
(c) Schedule 1.5 (Discontinuation of weekly payments after 2 years),
(d) Schedule 1.6 (Deduction for previous injuries and pre-existing conditions and abnormalities).
(2) Clause 1(3) of Part 18 of Schedule 6 to the Act applies in respect of an injury received before 1 January 1998 as if the reference in paragraph (c) of that subclause to the period of 78 weeks after the date of the injury concerned were a reference to the first 78 weeks of incapacity for work (whether total or partial, or both) after the worker becomes (or became) entitled to weekly payments of compensation in respect of the incapacity resulting from the injury. Separate periods of incapacity resulting from the same injury are to be aggregated to determine the period of incapacity for work.”

That Regulation was repealed and replaced by Workers Compensation Regulation 2010, which does not make any such provision, but does provide in clause 186 this:

“Any act, matter or thing that, immediately before the repeal of the Workers Compensation Regulation 2003, had effect under any of that Regulation continues to have effect under this Regulation.”

In short, to find applicable law must sometimes go to repealed Acts and repealed Regulations!

The above is not pure whimsy. It can be seen that Parliament intended by enacting Sch 6, Pt 18 cl 2 that the journey provisions were intended to apply to those who can shortly be described as coal miners. The amendments made to the journey provisions by Act No 120 of 1996 were beneficial. They replaced the concept of “fault” with the concept of “serious and wilful misconduct.” Act No 53 of 2012 introduced into the 1987 Act s 10(3A) which is in these terms:

“(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.”

but that provision does not apply to coal miners: Sch 6 Pt 19H cl 26. It post-dates the present plaintiff’s injury and is therefore strictly irrelevant but it does, again, indicate that Parliament intended that the journey provisions continue to apply to coal miners.

There are many who work in or about a coal mine who are not colliers. In Roberts v Fuchs Lubricants (Australasia) Pty Ltd (2002) 24 NSWCCR 125, Hunt C said this at [12]:

“Clearly the benefits which flow from the Regulation apply to and have been applied to a wider range of people than those who operate the machines which cut coal. It applies to the likes of engineers, surveyors, mine deputies and fitters who spend considerable time underground. It also applies to coal preparation plant operators, train loaders, yard foremen, bath house attendants, storemen and clerks provided they work within the physical boundary of a mining lease.”

Maguire CCJ said in Pilgrim v Ellavale Engineering Pty Ltd (2003) 25 NSWCCR 521 at [17] that Hunt C’s decision was correct. In Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; (2005) 2 DDCR 744 (“Ellavale”), Beazley JA cited what I have just quoted (and more extensively) from Hunt C at [36]. Mining technology continues to evolve. There are now more plant operators, plant mechanics, truck drivers, vehicle mechanics, electricians, air conditioning workers and, at least in open-cut mines, shot firers and blasting personnel. There are more who work at mines to support coal miners, e.g. first aid attendants, physiotherapists, welfare officers. They also work in or about a coal mine.

In or about a (coal) mine

A number of cases have discussed the meaning of these words. The first reported decision is Fuchs. At [4] and [5], Hunt C stated these facts:

“The applicant testified that at the time of injury he was employed by the respondent as a Service and Sales Engineer. The respondent has a head office in Newcastle but the applicant rarely visits it. He has an office in his home at Horsley and spends four days a week at various mines in the southern coal field. There are six or seven mines with whom the respondent has contracts. Of the four days spent at the mines, three are spent underground and one on the pit top analysing oil samples and/or conferring with the engineers and managers of the mines.
The applicant’s function while underground is to take samples of oil from the various mining machines. The samples are taken to the surface for analysis and reports provided to mine management and to the respondent. On odd occasions the applicant has gone to Queensland to cover for staff shortages.”

Further in [12] that I have quoted, the Commissioner pointed out that the only difference between Fuchs and the others to whom he referred was that Fuchs was not employed by a coal mining company but by a company which provided services to mines. The applicant in that case was injured whilst working in or about a coal mine. The Commissioner held that he was entitled to coal miners’ benefits as it was not necessary that he be employed by the operator of the coal mine.

The next decision was that of Maguire CCJ, to which I have referred, Pilgrim. His Honour held that a worker employed by a contractor to maintain and service on site various kinds of coal mining equipment used in open-cut coal mining operations was a worker employed in or about a (coal) mine. His Honour determined the worker’s status as a preliminary issue. Other issues in the worker’s case were decided by Truss CCJ. Before discussing the appeal from his Honour’s decision I shall mention two cases decided in the interim.
Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744 was a decision of Bishop DCJ. The case arose out of the death of a worker. The deceased was employed by the defendant as an electrician overhauling, repairing and modifying mining electrical equipment and inspecting such equipment on mining leases. His work entailed occasional underground inspections of such equipment in coal mines. He died at the defendant’s factory premises on 24 November 2000 in a period of extended working hours from ischaemic heart disease and coronary artery vessel disease. His dependents sought the more generous benefits available to the dependents of a coal miner. The defendant’s factory was not on any mining lease. Commencing at [14] his Honour said:

“14 The plaintiff argued that the definition of a coal miner should be regarded as descriptive. It was an essential element of the employment of the deceased that he worked underground in coalmines. This, it was said, was reinforced when the definition of “mine” in the s 5 of Coal Mines Regulation Act 1982 was examined. This, it was pointed out, referred to work on operations in connection with mining.
15 For the additional dependants it was argued that not only was this last submission correct but that “employment” in the definition was used in the general sense and, as was evidenced by the various tickets and ID's of the deceased tendered (see [5] above), his employment had a very strong coal mining connection.
Discussion
16 The issue is an important one, not only for this particular matter but generally. No real assistance can be gained from attempting to delineate government policy by means of second reading speeches and the like. The reason for this is that when the Coal Mine Health and Safety Act 2002 is ultimately proclaimed, a new regime will be in place as one of the things that that legislation does is to repeal the Coal Mines Regulation Act 1982. However, with the exception of one provision, the Act has not as yet been proclaimed to commence.
17 The fact that there is a very clear cut self-contained regime operating in coal mines can be seen by s 7A of the Workers Compensation Act which deems Coal Mines Insurance to be a licensed insurer and exempts coal mines from the operation of the Uninsured Liability Scheme.
18 To attain a workable operation for the definition of “coal miner” referred to in the Coal Mines Regulation Act 1982, I think that there is no option but to continue the approach adopted in the Pilgrim decision. That makes the answer a question of fact as to whether there is sufficient evidence to indicate that a worker was employed in and about a coalmine. Many people might visit coalmines. The postman might deliver mail. A milkman might deliver milk. The nature of the employment in those situations cannot be said, as a question of fact, to be in and about a coalmine. There has to be, as counsel for the defendant submitted, a real and effective physical contiguity between the employment, a coalmine and the subject injury. As a matter of fact, that is not established on the evidence in this case.
19 A further matter that would support a physical contiguity construction relates to assessment of premium and management of claims. That can only be established by a determination of a substantial and significant physical connection between the employment and a coalmine so that both the worker and the employer can, with a reasonable degree of certainty, determine where they stand rather than having to embark upon complex assessments of fact and degree.”

His Honour struck out the matter but I would have thought that a dismissal order was a more appropriate remedy.

Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177 was another decision of Bishop DCJ. It is not directly on point. A worker died on 20 November 2003 as a result of an injury received on a mine site near Aberdeen when he was unloading a metal trailer from the rear of a semi-trailer. He was a dogman employed by the defendant. The defendant’s business involved the hiring of cranes, trucks and trailers and elevated work platforms to the mining industry, agricultural industry, vineyards and the RTA, with or without drivers. The widow and children of the deceased successfully claimed statutory benefits as the dependants of a worker whose death was caused when he was injured in or about a coal mine. The employer cross-claimed against two insurers, its ordinary workers compensation insurer, EMI, and Coal Mines Insurance Ltd (“CMI”), the insurer under s 7A of the 1987 Act “of all employers in the coal industry (whether or not such employer maintains a policy of insurance with that company)” – subsection (4). The employer was held to be indemnified by EMI, not CMI. Commencing at [49] his Honour said:

“49 It was really common ground that in the absence of a statutory definition the concept of “employer in the coal industry” was really a question of fact. It is, I consider, very reasonable to apply the authorities referred to above leading to that conclusion. For a number of reasons, however, I think that the criteria have to be defined with a little more precision.
50 It is, I think, correct as argued by Senior Counsel for EMI that the provision in s 7A(4) must be interpreted as giving a notional monopoly to CMI in the appropriate situation to the exclusion of any argument of double insurance. Coal miners retain for compensation purposes certain benefits of greater value than those attributed to workers in other industries and some benefits that are less. It is difficult to see the creation of an industry monopoly for CMI as being designed to provide the windfall of extended benefits to all staff in an off-site enterprise. In a recent decision the issue of jurisdiction arose with regard to the collapse of a worker in factory physically separate from any coal mining site who was repairing some coal mining equipment (Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744). The office staff and receptionist at that factory would be a little startled to be told that they were coal miners. The same reaction might well be anticipated from the apprentices in the defendant's workshop.
51 In these two last-mentioned examples the employees in question would also be surprised to find that not only were they entitled to receive benefits at the coal miner's rate but that if there was any dispute about liability, it would be determined in the District Court rather than the Workers Compensation Commission.
52 Pilgrim's case is an example where an off-site enterprise presumably insured by a WorkCover insurer was required to pay a claim at coal miner's rates.
53 Perhaps what this case illustrates most of all is the necessity to have an interpretation of the legislation that can provide some degree of certainty to employers and insurers. The above quotation from the Blue Sky decision supports taking this into account. The whole workers compensation position in this State is dependent upon insurance or licensed self-insurance. It follows that an employer must be reasonably confident in making a decision as to how it should insure. This certainty would not be forthcoming if an employer who was a contractor had to assess the position solely on the number or value of its clients in the coal industry. The data for such an assessment would essentially be historical. It could change dramatically from year to year. Were the contracts to significantly change during the year, the employer would have great difficulty in determining how to properly discharge its legal obligations. If a change in the nature of the business during a policy year were to bring the employer within the confines of s 7A(4), then the employer would be unable to cancel its WorkCover policy without the prior approval of the Workers Compensation Commission. This could well involve both double insurance, which is on the face of it precluded by s 7A(4), and a liability for excess premiums. Such a situation does not sit comfortably with the workers compensation scheme.
54 I consider that the submissions of the second cross-defendant and the defendant are essentially correct. Schedule 6, Pt 18 defines who is entitled to receive benefits at coal miner's rates. In order to arrive at a workable system an employer in the coal industry must have all or virtually all of its employees working in or about a coal mine pursuant to Sch 6, Pt 18. With the induction and other safety requirements, the vast majority of employees must be qualified to and actually work in or about a mine site. The factual evidence here does not bring the defendant into the category of an employer in the coal industry.
Conclusion
55 The defendant succeeds against the first cross-defendant and I find, pursuant to s 155 of the WC Act that the first cross-defendant is required to indemnify the cross-claimant for the full amount of the cross-claimant's liability to its workers (or dependants) under the Act.”

In light of what was said by Beazley JA in Ellavale at [64] – [66] and [86], it appears to me that his Honour’s decision was correct.

The next decision is Ellavale. The appeal from the decision of Maguire CCJ in Pilgrim was dismissed. In short, the Court of Appeal (Handley and Beazley JJA and M. W. Campbell AJA, (a former Chief Judge of the Compensation Court) held that a person who worked in or about a coal mine need not be employed by the mine owner/operator. The principal judgment was given by Beazley JA with whom Handley JA concurred “for slightly different reasons”. M. W. Campbell AJA concurred with both but said this at [95]:

“With respect the observations of Handley JA at [13] seem to me both correct and of considerable utility in the practical application of Sched. 6, Pt 18.”

At [13] Handley JA said this:

“It seems to me that nothing turns on the regularity or otherwise of the work done by a worker in or about a coal mine. The focus is on the actual work being done by the worker at the time of his injury provided this was substantially centred in or about the mine. This excludes workers who visit the mine in the course of their employment for relatively short periods whose general work is not in or about the mine. It includes a worker whose general work for the time being is in or about the mine even if it is expected to last only for a relatively short time and whether his employer is the coal mine operator or not.”

Their Honours adopted what is shortly called “the proximity test”. Beazley JA said this:

“79 In the present case, the legislation concerned is the WCA, which, inter alia, is an Act to provide compensation benefits to workers in respect of work related injuries. The Coal Mines Regulation Act 1982 makes provision for the safety of persons employed in coal mines. Underlying that purpose is the recognition, as expressly acknowledged in the Second Reading Speech to the 1982 Act, that coal mines are inherently dangerous places. As a matter of common knowledge and common sense, mines are not only inherently dangerous for those who extract the coal. They are inherently dangerous for persons who work in or about a mine, whether those persons are directly engaged in the extraction process or not. For example, an office worker or cleaner working “about a mine” could be endangered by an explosion, a fire, or a cave-in. It was not suggested by the appellant that such persons employed did not fall within Sch 6 Pt 18 cl.1.
80 Likewise, coal mines are inherently dangerous places for persons working “in or about” the mine, regardless of whether such persons are employed by the mine operator. However, on the appellant’s construction, the employees of a cleaning company whose sole contract was with a mine would not have the benefits preserved by Sch 6 Pt 18 and yet, if the mine operator employed cleaners directly, they would be entitled to the preserved beneficial compensation provisions. There is nothing in the words of the definition that requires such a differentiation to be made. The appellant’s argument is even less compelling if the example was that all cleaners were employed by a wholly owned subsidiary of the mine operator. The examples and incongruities can be multiplied.
81 Thus, there seems to be no good reason to imply into the phrase “coal miners” in Sch 6 Pt 18 cl.1 the words “by the mine operator” as is required on the appellant’s construction, when work necessary for the ongoing operation of the mine, such as machinery repair and maintenance, is outsourced. Nor should it make any difference if the entity that undertakes the outsourced work does not carry out its entire work at the mine. Accepting, therefore, that the purpose of the Coal Mines Regulation Act 1982 is to provide for the safety of persons working in mines, there appears to be no warrant to confine the meaning of “coal miner” to a worker who is so employed by the mine operator.
[…]
89 This is a case where the application of the principles of statutory construction do not overwhelmingly point to one construction over the other. Rather, there are sound arguments that support either construction. However, in the end result, I am of the opinion that the purpose of Sch 6 Pt 18 cl.1 is that those who work in the inherently dangerous conditions of coal mines were to be entitled to more favourable compensation benefits, and that purpose is best achieved by construing the clause in the way contended by the respondent.”

In addition to what I have already quoted from Handley JA, his Honour went on to say this:

“14 A tradesman, employed by a contractor, called in for a short job underground, measured in hours or days, who is injured at the mine would, in my judgment, be employed in or about the mine at the time of his injury regardless of the general nature of his duties before that job. In other cases the fact that the employer is the mine operator may be important, for example in the case of truck drivers employed by the operator for the transport of coal from the mine.
15 A tradesman such as the respondent who worked for between 36% and 47% of his time in or about a coal mine is a coal miner as defined while doing such work, but not at other times, and he would not become a coal miner at other times even if more than half his work over some more or less arbitrary period was in or about a coal mine. The problems with journey cases in this situation can be left to another day.
16 The respondent was injured on the mine site at a time when the general nature of his duties was in or about the mine, that was where for the time being he was going to perform the duties of his employment and these duties were connected with the business of the mine operator. He was therefore a coal miner as defined.”

In can be seen that what is now before me was said by Handley JA in the last sentence of [15] as being “left to another day”. Beazley JA also alluded to the journey provisions:

“56 Statutory construction involves construing a particular provision within the context of the legislation as a whole. The appellant contended that it was necessary to construe the phrase so that only workers employed by the mine operator had the benefit of the enhanced compensation entitlements. It was said that this construction was necessary so as to enable the WCA to apply consistently and cohesively to the employment of a person in the position of the respondent. Senior counsel for the appellant relied upon “journey” claims and the “nature and conditions of employment” provisions of the WCA to demonstrate this point.
57 There are two types of journey for the purposes of the WCA. First there are journeys that occur within the course of employment. The appellant raised, by way of argument, the case of a person, such as the respondent here, who was proceeding from a job that was not at a coal mine to a job at a coal mine. It was contended that it would be absurd to find that a person injured whilst on such a journey, was entitled to the enhanced compensation benefits. Although the worker would be in the course of her or his employment whilst undertaking that journey it could not be said that the worker was working in or about a coal mine for the whole journey. The appellant submitted that it would be equally absurd to have some arbitrary delineation in the journey, for example, at the half way mark to determine whether or not Sch 6 Pt 18 applied.

58 Such a case could raise difficult questions for the determination of the court. Indeed, workers compensation is replete with difficult cases. The legislation itself has provided for some of the difficult questions that have arisen. For example, the case of a journey between two different employments is dealt with by s.10(5) of the WCA. There is nothing in the legislation which assists in this particular case. However, the fact that a particular factual situation would not be easy to resolve under the legislation does not of itself mean that the legislation should be construed in such a way as to “fit” the difficult case.
59 Many “difficult case” scenarios are thrown up by the s.10 “journey” cases. Section 10 provides, in broad terms, that where a worker suffers injury on a journey to or from that person’s place of abode and place of employment, compensation is payable under the Act. There is also provision for journeys to and from medical appointments relating to injuries caused in the course of employment. The appellant argued that if the respondent’s construction was accepted, it would be a matter of some difficulty, and an unnecessary complication, to determine whether a worker, who was a “coal miner” whilst undertaking some work for his employer and not a “coal miner” whilst undertaking other work, was on a s 10 journey that related to work as a “coal miner” so as to be entitled to the enhanced benefits. It was submitted that the difficulty was further illustrated if the worker was on a journey from a coal mine to undertake medical treatment (such journeys also being covered by s.10) in respect of an injury received during the course of employment which was not at a coal mine.
60 The journey provisions have always tested the courts, as have the recess provisions (see s.11), as the factual circumstances thrown up by the lunchtime, sporting and Christmas party cases demonstrate: see, for example, Wilkins v Electricity Commission of NSW [1969] WCR (NSW) 111 (social functions); Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 (lunchtime activities); Commonwealth v Lyon (1979) 24 ALR 300 (sporting events). There is no special difficulty in the examples posed by the appellant in determining whether the journey provisions apply, beyond the difficulties that can be encountered in the determination of whether, in a particular factual circumstance, the worker was on a “journey” to which the WCA applies.”

Presland v Ellavale Engineering Pty Ltd (2005) 3 DDCR 179 is a decision of Truss DCJ. It is directly on point, although I do not know whether the defendant in that case raised the issue currently before me. The plaintiff in that case claimed compensation for injuries he received in a motor vehicle accident whilst he was travelling from Gulgong where he had been working for the defendant at the Ulan Colliery to his home in Rutherford, which is near Maitland. He was employed by the defendant as a trades assistant. Truss DCJ found that he was a “coal miner” and the case was then settled. Her Honour was then required to resolve a cross-claim brought by the defendant against its ordinary workers compensation insurer (EMI) and CMI. This was the same issue argued before Bishop DCJ in Badior. Her Honour followed Badior, noting in particular what was said by Beazley JA in Ellavale at [86].
Select Civil (Kiama) Pty Ltd v Kearney [2012] NSWCA 320 was an unsuccessful appeal from a decision of McLoughlin DCJ, sitting in the Civil List. The principal judgment was given by Macfarlan JA with whom Allsop P (as he then was) and Tobias AJA concurred, although Tobias AJA expressed some reservations about the reasoning of Macfarlan JA. The relevant facts are shortly stated by Macfarlan JA at the commencement of his judgment:

“2 On 10 April 2006 Mr Michael Kearney, the respondent, was injured in the course of his employment by the appellant as a labourer at Kemira Colliery near Wollongong. The colliery operated as an underground coal mine between 1848 and 1991. Its two tunnels and four shafts were sealed in 1995. In June 2003 the Department of Primary Industries approved a Rehabilitation Master Plan for the site. Rehabilitation was necessary to enable Illawarra Coal Holdings Pty Ltd, the holder of a mining lease over the site, to relinquish the lease. That company engaged the appellant to carry out site rehabilitation and associated work including "[p]lacement and maintenance of erosion and sedimentation control measures". Mr Kearney was engaged on the maintenance aspect of this work at the time of his accident.
3 Mr Kearney commenced proceedings in the District Court against the appellant for damages for breach of its duty as employer. The only issue between the parties was whether Mr Kearney's entitlement was precluded or restricted by the amendments to the Workers Compensation Act 1987 made by the Workers Compensation Legislation Further Amendment Act 2001. Resolution of that issue turned upon whether Mr Kearney fell within the express exception to the operation of that 2001 Act for coal miners.
4 The primary judge, McLoughlin DCJ, held that he did. For reasons given below, I agree that that was the case and that the appellant's appeal should be dismissed.”

This case essentially turns on the construction of the Coal Mines Regulation Act 1982. I mention this case because Mr Benson, for the plaintiff, cited [9] to [16] of the judgment. Those paragraphs are these:

“9 The primary judge concluded that as rehabilitation operations were continuing at the date of Mr Kearney's accident, the Kemira Colliery was not an abandoned mine. His Honour did not make clear precisely why he was considering the question of abandonment but it may have been to support a conclusion that the area where Mr Kearney was working was in the course of being, but was not yet, abandoned, with the result that s 5(8)(b) deemed it to be part of a mine.
10 If this is what his Honour had in mind, his reasoning was in my view correct as the Colliery, or at least the part that was being rehabilitated, could not be regarded as "abandoned" when work that had been rendered necessary by mining operations was being performed to rehabilitate the site to enable the mining lease to be relinquished.
11 The primary relevant meaning of the word "abandon" is "to leave completely and finally; forsake utterly; desert" (The Macquarie Dictionary, 5th ed, 2009). Abandonment of the Kemira Colliery had not occurred at the date of Mr Kearney's accident. There were people, including Mr Kearney, engaged in work, for the mining leaseholder, associated with the by-then-discontinued mining on the site. The site could not have been described as abandoned for this purpose if after cessation of mining operations, miners were packing up their gear to leave. Although the process was more attenuated, what was occurring at the time of Mr Kearney's accident was no different in principle: a necessary concomitant of the mining was incomplete.
12 The conclusion that the site upon which Mr Kearney worked at the time of his accident was a mine within the Coal Mines Regulation Act also follows, in my view, from the definition of "mine" as a noun in s 5(1) of that Act. That definition included as a mine "any ... work ... whereby ... any operation for or in connection with mining is carried on ... ". That definition did not require the occurrence of actual mining on the date under consideration. What it required was that the "work" (here the rehabilitation work) being carried on at that time be "in connection with mining". For reasons analogous to those given in respect of s 5(8)(b), the rehabilitation work occurred "in connection with mining": it was a necessary concomitant of the mining. As the parties to the proceedings accepted, mining at the site was only permitted upon the basis that an obligation to clean up and rehabilitate the site was undertaken.
13 The appellant resisted this conclusion by submitting that, as the mining leaseholder gave notice in 2003 of abandonment of the mine and discontinuance of its operations, s 5(10) deemed the site to be no longer a mine. However that subsection concerned the issue of whether a mine is being "worked". This concept was relevant, for example, to whether an obligation existed under s 36 of the Act to have a mine manager, but it was distinct from the more basic question of whether the site was a mine (irrespective of whether it was being "worked" at any particular time). In any event, I do not consider that there was anything in the terms of that subsection, or elsewhere, that suggested that it was intended to limit the breadth of earlier stated provisions, such as the two definitions of "mine" in s 5(1). Accordingly, contrary to the appellant's submission, the giving of a notice of abandonment did not in my view "provide a definite cut-off" to the operation of ss 5(8) and (9).
14 My views as to the abandonment of the mine and the rehabilitation work occurring "in connection with mining" are supported by the decisions at first instance and on appeal in Cudgen R.Z. Ltd v Valuer-General (1974) 1 NSWLR 81 and (1974) 2 NSWLR 75. In referring to restoration of the surface of land that had been used for mining after completion of the extraction of minerals, Else-Mitchell J, at first instance, said:
"Such restorative or rehabilitative measures are, it seems to me, an inseparable and essential incident of the conduct of mining activities entailing the extraction of minerals, not only because the terms of the lease so provide but as a matter of social and ecological control" (at 86).

15 Views to like effect were expressed by this Court in affirming Else-Mitchell J's decision on appeal. Their relevance to the present case is emphasised by the use in the relevant definition of the words "in connection with". These are words of wide import and "include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing": Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638 per McFarlane J at 639, quoted in Re his Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161 at [37] (see also Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 288 - 9).
16 I do not however agree with the view of the primary judge that the site of the rehabilitation work was deemed to be a mine by s 5(9)(c) due to the removal or replacement of "overburden". As the primary judge pointed out, the Macquarie Dictionary relevantly defines "overburden" as "unwanted material overlying a mineral deposit". Section 5(9)(c) is inapplicable because there was no evidence that the material brought onto the site after the cessation of mining operations constituted a replacement of "unwanted material" that had previously overlain the mine site. In any event, as with subsection (10), subsection (9) concerned not whether a site was a "mine", but whether a mine was being "worked".”

The next relevant decision is Baggs. The employer is that case was not a mine operator. The relevant facts are set out early in the judgment of Meagher JA:

“11 Waratah's principal place of business is at Argenton in New South Wales. That business includes the manufacture, supply and maintenance of underground mining equipment used in coal mines in Australia and New Zealand. Although he was employed by Waratah and usually based at Argenton, Mr Baggs' work occasionally required that he travel to and work in and around coal mines in New South Wales, Queensland and New Zealand.
12 In July 2010 Mr Baggs and another employee of Waratah, Mr Pearson, travelled to New Zealand by air. They did so at the direction of Waratah. After staying overnight at Greymouth, they set out for the Pike River coal mine. The motor vehicle accident occurred on that journey. The purpose for their travelling to the mine was to instruct mine workers in the use and maintenance of coal extraction equipment which had been supplied by Waratah. It was proposed that they attend at the mine for one week to carry out that work.
13 Facts were agreed to enable the separate and two related questions to be decided. Those facts are set out by the primary judge at [6]. They include, in addition to those summarised above, that:
‘5. The plaintiff's employment was usually based at the defendant's principal place of business.
6. The plaintiff's work included work at that place when required in and around coal mines in NSW, Qld and NZ.
7. In the days prior to Sunday, 11 July 2010, the defendant directed the plaintiff to travel to the Pike River coal mine, New Zealand ('the mine') with another employee of the defendant, Barry Pearson, for the purpose of his employment duties.
8. The plaintiff had been directed by the defendant to attend the mine previously and did attend the mine between 07/08/2008 and 13/08/2008.
9. As part of his employment duties with the defendant, the plaintiff had previously attended coal mines in NZ as follows: Pike River mine in August 2008 and Spring Creek mine in December 2008.
[...]
11. The defendant directed the plaintiff to attend the mine to train Pike River workers in the use and maintenance of the 'Waratah Guzzler' at the mine.
12. Pursuant to that direction from the defendant, the plaintiff and Barry Pearson travelled by air from Sydney to Christchurch, NZ on Sunday 11 July 2010 and from there in a vehicle provided by the defendant to Greymouth NZ for overnight accommodation before travelling to the mine.
[...]
25. The plaintiff had attended to Pike River mine and performed work in and around the mine in the course of his employment with the defendant on three previous occasions.’”

The worker in that case had commenced an action for damages for personal injury in the tort of negligence against his employer alleging that it was vicariously liable for the negligence of the driver, Mr Pearson. The worker alleged that he was entitled to the more generous award of damages that a coal miner can recover against his employer. Marks ADCJ decided three questions:

(i) that the law of this State rather than the law of New Zealand applied, pursuant to 1987 Act, s 150A;

(ii) that the Pike River coal mine in New Zealand was a “coal mine” within the definition of “mine” in Sch 6 Pt 18 cl 3(4); and,

(iii) that the worker was a “coal miner” within the meaning of the same Schedule in which each of the clauses uses the terminology “worker employed in or about a mine”.

The employer appealed against the last decision of this Court.

The principal judgment was given by Meagher JA, with whom Sackville AJA agreed, giving short reasons. Basten JA dissented. The appeal was allowed and the Court of Appeal ordered that the question of whether the worker was a “coal miner” at the time of the accident be set aside. Commencing at [34] Meagher JA said this:

“34 The question whether Mr Baggs was "employed in or about a mine" at the time of his injury is a different question from whether his injury occurred "in or about a mine". It is also a different question from whether his injury occurred in the course of his employment. As Handley JA notes in Ellavale at [6] and [7], in this context "employed" is used to refer to the work in which the employee is engaged or occupied in the performance of the duties of his employment. That question directs attention to the work being undertaken at the time of the accident. It is that work, undertaken in the course of the worker's employment, which must answer the description "in or about" a mine irrespective of whether it is being undertaken as a specific task or during a period of time, whether short or long, regular or irregular. That appears from the passages of Handley JA's judgment at [13] and [15], which are emphasised above, and in his conclusion at [16] as follows:
‘[16] The respondent was injured on the mine site at a time when the general nature of his duties was in or about the mine, that was where for the time being he was going to perform the duties of his employment and these duties were connected with the business of the mine operator. He was therefore a coal miner as defined.’

It also accords with the reasoning of Beazley JA at [75], [76] and [81].
35 Thus, the requirement of employment "in or about" describes a relationship of physical proximity and connection between what the worker is engaged or occupied in doing in the course of his or her employment at the time of the injury and the mine, including its business. That employment does not have to be by the owner or operator of the mine. However, it will be relevant to whether work answers that description to take account of the identity of the worker's employer and the general nature of his or her work duties. Each of these matters assists an understanding of the connection between the work in which the employee is engaged and the relevant mine. This is particularly likely to be so where the worker is not employed by the mine operator but attending at the mine or where the worker is employed by the mine operator but working away from the mine.
36 The primary judge accepted Mr Baggs' submission that at the time of the accident the general nature of the activity or work in which he was engaged was that of working in the Pike River mine for a period of a week. He reasoned as follows:
‘[43] This leaves for consideration whether I am able to construe the provisions of the legislation in such a way that the plaintiff in these proceedings may be characterised as a coal miner whilst travelling to a coal mine to perform work which, if performed at the coal mine he would do so as a coal miner. ...
[44] It was Mr Sexton's submission that once a person was characterised as a coal miner for a particular situation or circumstance, then he or she did not lose that characterisation while doing something which was part and parcel of that work and within the scope of that occupation. ... Accordingly, it being uncontroversial and admitted for the purpose of the proceedings that the plaintiff would have been a coal miner whilst performing at the Pike River mine (leaving aside questions of extraterritoriality), there is no reason why he should lose that characterisation while proceeding to the mine for the purpose of undertaking that work.
[45] As a matter of practicality, and common sense, I find this submission to be persuasive. ...
[46] The approach to construction which I favour is consistent with the general approach adopted by Handley JA, the thrust of which is to have regard to the general nature of the worker's service. The plaintiff would have been characterised and regarded as a coal miner once he had reached the mine. I cannot see any good reason why he would lose that characterisation and not be so regarded whilst travelling to the mine to perform the work of a coal miner. [That] ... was something which he was undertaking in the course of that part of his employment, and was clearly within the scope of his employment. Whilst doing so, and when injured he was a coal miner for the purpose of the Act and entitled to have his claim for damages considered as such. (emphasis added.)’

37 The primary judge's reasoning starts with the "uncontroversial and admitted" proposition that had Mr Baggs commenced working at the mine he would have been a worker "employed in or about" it. That would have been so because he would have been doing work in or about the mine which had a connection with the mining operation and was undertaken as part of his service to or employment by Waratah. It does not follow, however, that whilst travelling from Greymouth to the mine he was working in or in close physical proximity to the mine and in an activity connected with it. Indeed it is not part of Mr Baggs' argument that at the time of the accident he was engaged in a work activity within sufficient physical proximity to the mine that it answered the description "in or about" the mine.
38 The primary judge's reasoning addresses the question of characterisation of the work being done by Mr Baggs at the time of the accident from the perspective only of his employment by Waratah. From that perspective the task of travelling to New Zealand to spend one week working at the Pike River mine constituted a single overall period of work for the purpose of considering whether the injury and accident, which happened on his journey to the mine, occurred in the course of his employment with Waratah: see Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 at 483-484; Comcare v PVYW [2013] HCA 41; 303 ALR 1 at [29]. That period commenced when he set out from Sydney for New Zealand and might be described as a period in which he was employed in or about the Pike River mine. However, it does not follow that he was a "coal miner" within cl 3(4) from the moment he travelled from his home in Sydney until he returned there.

39 The primary judge's approach does not address the correct question, which is whether at the time the accident happened the work in which Mr Baggs was engaged was being undertaken in or in physical proximity to the mine and for purposes connected with the business or operation of the mine. At the time of the accident Mr Baggs was travelling to the mine by road. He had not commenced any activity or duty at the mine or which was part of the mining operation. Nor was he in sufficient proximity to the mine to be "in or about" it. As Handley JA observed in Ellavale Engineering at [13], the focus is on "the actual work being done at the time of his injury". The fact that Mr Baggs was travelling to the mine to undertake activities which, when undertaken, would have answered the relevant description did not have the consequence that his doing so also answered that description. The primary judge erred in concluding otherwise. Had Mr Baggs been engaged in work at the mine at the time he was injured he would have been employed "in or about the mine" and that would have remained the position irrespective of whether at the relevant time he was working underground or on a break.”

Sackville AJA said this:

“43 I accept that the focus of cl 3(4) of Schedule 6, Part 18 of the Workers Compensation Act 1987 ("WC Act") is on the employment of the worker. Thus although it is unnecessary to decide, there would seem to be no difficulty in concluding that a worker employed full time or substantially full time in or at a mine is a "worker employed in or about a mine", even if that worker is injured while travelling to the mine site. Such a person is employed in substance only to perform tasks in or at the mine.
44 The agreed facts in this case state that the respondent's employment was usually based at Waratah's principal place of business in New South Wales. His employment required him to attend coal mines from time to time. The frequency of his attendances at mines is not stated in the agreed facts.
45 In these circumstances, Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; 2 DDCR 744, suggests that Mr Baggs had to satisfy two conditions in order to be a "worker employed in or about a mine" at the time he sustained his injuries. The first is that his employment at the time of the injury had to be connected in some way with the business carried on at the relevant place, in this case the Pike River Mine: at [6], [11], [16], per Handley JA; at [75], [81], per Beazley JA (M W Campbell AJA agreeing with both). Clearly he satisfied this requirement. The second is that at the time of the injury his employment took him to the mine or in close physical proximity to it: at [70], [75], [79]-[81]. Beazley JA supported the second requirement by reference to the purpose of the Coal Mines Regulation Act 1982 (the benefits of which Sch 6, Pt 18 of the Workers Compensation Act 1987 preserved), which her Honour saw as recognising the inherent dangers for those who work at a mine or close to it, whether they are directly involved with the extractive process or not.
46 The statement of agreed facts did not identify the precise location of the accident, except to say that it occurred while the respondent was a passenger in a vehicle travelling along Taylorville Road, from Greymouth towards the mine. This Court can take judicial notice of the fact that the Pike River Mine is about 45 kilometres from Greymouth: Evidence Act 1995, s 144(1). (This information is available from a number of incontrovertible sources, including the Report of the Royal Commission on the Pike River Coal Mine Tragedy (2012).) Since the agreed facts indicate that the accident took place about 15 minutes after the respondent and Mr Pearson (the driver of the vehicle) left Greymouth, it clearly occurred at a considerable distance from the mine, well beyond the point at which the respondent would be exposed to any danger from activities or mishaps at the mine itself or in the area affected by mining operations.
47 At the time the respondent sustained his injuries, he was acting in the course of his employment since his employer required him to travel to the mine. But as Meagher JA has pointed out (at [34]), the question of whether the respondent was "employed in or about a mine" is a different question from whether his injury occurred in the course of his employment. At the time he was injured, the respondent was certainly employed to perform duties connected with the operations of a mine. No doubt it could also be said that he was employed to travel to a mine. But, in my view, at the time he sustained injuries he was not employed in or about a mine.
48 There is no occasion to consider whether, if the accident had occurred very close to the mine gate, the respondent would have satisfied the statutory language. On the facts of the case, the accident did not take place "about" the mine.”

After citing what Handley JA said in [13] of Ellavale, quoted at [22] above, Basten JA said this, presciently in my view:

“7 The first sentence in this passage was a rejection of the proposition that the worker was not employed in or about a coal mine in circumstances where less than half of his time was spent at coal mines. In the second sentence, the reference to "the actual work being done by the worker at the time of his injury" did not construct a requirement that he be engaged in work at the time of his injury, but rather referred to the general nature of the work being undertaken at that time: this is clear from the subsequent reference to work which was "substantially centred in or about the mine" and the reference to "general work for the time being". The suggested alternative reading would lead to absurd results: it would deny coal miners the more generous regime provided to them under the Workers Compensation Act whilst on journeys connected with their employment (which would otherwise fall within s 10) and whilst having their lunch or otherwise on recess (which would normally fall within s 11). If the injury occurs during such periods, it occurs in the course of employment for the purposes of the Workers Compensation Act; the relevant question is the characterisation of that employment as being in or about a mine.
8 It is no doubt true that the phrase "in or about a mine" imposes a requirement of physical proximity. However, that refers to the place at which the work is to be carried out. It does not refer to the place at which the injury occurs. At the time of his accident, Mr Baggs' employment required him to carry out work at a mine site. He was, therefore, a coal miner. The trial judge identified the question as requiring characterisation of the work being done by Mr Baggs during that period. He was correct to do so. He gave the only answer reasonably open in the circumstances.”

Mr Baggs sought leave to appeal to the High Court: Baggs v Waratah Engineering Pty Ltd [2014] HCA Trans 108. Leave was refused. Poignantly, Mr I. D. M. Roberts SC, who appeared for the employer, told French CJ and Hayne J this:

“Your Honours, my learned friend submits that the importance of the issue arises because – that there is a requirement that the injury must occur at the mine site and in particular that a coalminer, whilst travelling to or from work or between mine sites, would be disentitled to the enhanced benefits. That is, encapsulated by paragraph 13 of my learned friend’s submissions which are at page 59 in the application book, where he says:
‘No worker, even one whose usual duties involve only digging out coal within a mine, will obtain the benefit of Schedule 6, Part 18 whilst travelling to or from the place of work – ‘

We submit that is incorrect. That would not be the effect of the Court of Appeal’s decision because that worker would be engaged on a journey, within the meaning of the Act, which this worker was not, and whilst engaged on a journey a worker is in the course of his employment. So if the course of his employment comprehends – involves one whose usual duties involve only digging out coal within a mine, he would remain protected whilst undertaking such a journey. Thus the effect of the Court of Appeal’s decision is really restricted to those people whose general employment is not in or about a mine, as this man’s general employment was not, but who are, for the purpose of their employer’s business, travelling to a mine but have not got there when they suffer their injury.
For those reasons, we submit, it is not a matter of general public importance, and we also submit that no point is taken that the decision in Ellavale was wrong or in error and, in particular, the statement by his Honour Justice Handley which was relied on by the majority in this case that the focus is on the actual work being done by the worker at the time of his injury provided this was substantially centred in or about a mine. For those reasons, we submit, this is not a matter for special leave. We can say no more than that, but we rely on our written submissions.”

The present defendant now seeks to do what Roberts SC disclaimed he was seeking to do!

Consideration

The present defendant relies on the dicta of Meagher JA and Sackville AJA. The defendant’s Counsel, Mr Newton after quoting those dicta submitted this:

“The Defendant respectfully submits, in accordance with the Court of Appeal’s decision in Baggs, a Decision of Meagher JA and supported by Sackville AJA, unless the factual circumstances in the Plaintiff’s case can be distinguished, the Court is bound to follow the decision in Baggs. Factually, it is on “all fours” with Baggs. It cannot logically, on the pleadings, be distinguished otherwise.
Any argument that in fact a journey claim can be alternatively argued that the Plaintiff was in the course of his employment is singularly without merit. This case was never pursued by the Plaintiff on any argument that differentiates between ‘journey’ and ‘in the course of employment’. Conceptually, and factually, there is an absolute distinction between cases argued ‘in the course of employment’ and the relevant criteria satisfying same as distinct from a ‘journey from a worker’s residence to work and from work to home’.”

With the utmost, and unfeigned, respect, I believe the reasoning of Basten JA in Baggs to be correct and the reasoning of the majority to be erroneous. It was accepted in that case that the worker’s injury arose out of and/or in the course of his employment. What employment was that? It was work in or about the Pike River coal mine. Nothing in Schedule 6 Pt 18 requires the worker’s injury or death to occur “in or about a mine”, which Meagher JA conceded in [34] of his reasons. The reasoning of the majority might lead to absurd results. Consider these scenarios:

(a) An electrician has worked at say, Mr Arthur Colliery near Muswellbrook, for a decade. He is a trusted employee. A new part is required for an electrical motor. There is none in stock. He consults the mine manager. The manager makes a telephone enquiry and then gives this direction to the electrician: “Ellavale Engineering at Argenton (a suburb of Newcastle) has that part in stock. Take one of the mine vehicles and drive down there and pick it up. It’s only 10am – you’ll be back before knock off time.” Whilst loading the part onto the truck at Argenton, the electrician injures his back. On the reasoning of Basten JA he recovers compensation as a coal miner - this is the only time he has worked off site. On the reasoning of the majority, because Argenton is a long way from Muswellbrook, he does not.

(b) A miner’s clothing becomes, accidentally, saturated with a chemical solution which, when dry, becomes inflammable. He wears that clothing home. It is midwinter. He stands in front of a fire to warm himself. His previously saturated clothing catches fire. He is injured. His injury arose out of but not in the course of his employment: Carr v Donnelly [1937] WCR 294. Like the present plaintiff, this miner lives about 100kms from the mine. Does he recover compensation as a coal miner? There is no proximity between the mine and his injury.

(c) A coal miner is injured whilst working in a coal mine near Lithgow. He is sent for treatment to Sydney. Surgery is recommended by the treating specialist and the employer agrees to pay for it. As a result of the surgery, there is a medical complication as a result of which the miner dies. His death results from the original injury and therefore arises out of his employment, but there is no proximity between the mine and his death. Is proximity of the original injury sufficient?

Very early case law established that the course of a workers employment did not commence until he reached his place of employment and that it ceased when he left his place of employment: Benson v Lancashire and Yorkshire Railway Coy [1904] 1 AC 242; Nolan v Porter and Sons (1910) 2 BWCC 106 (Eng. CA). There have been many refinements of this basic principle. The problem of determining in an ordinary case precisely where the course of employment commences and ends was discussed very fully in Weaver v Tredegar Iron and Coal Coy Ltd [1940] AC 955. In Maurino v Amberlor Pty Ltd (1996) 14 NSWCCR 16 at 21C I quoted part of the work of the late Prof C P Mills, Workers Compensation New South Wales (2nd ed 1979, Butterworths) commenting on relevant case law. In Maurino the worker’s injury occurred whilst he was driving home. His motor vehicle accident was occasioned by his own “fault” and he could not recover compensation under the journey provisions (s 10) but I held that he was in the course of his employment whilst so travelling and was entitled to compensation accordingly. See also Fekonja v Lucsan Pty Ltd (1994) 10 NSWCCR 339 and Smith v Brown (1998) 16 NSWCCR 492. Because of the early case law, journey provisions were enacted in the Workers Compensation Act 1926, s 7 and the 1987 Act, s 10. Section 10 commences thus:

“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”

This is a deeming provision. For a worker who is employed “in or about a mine” it extends the course of that employment. Mr Baggs was in the course of employment in or about a mine when he was injured, because it was undoubted that when he reached the Pike River coal mine he was to be working in or about that mine.

However, it is a basic principle of the common law, a basic principle of the doctrine of stare decisis, that I must follow and apply binding decisions of courts to which an appeal lies from me. A puisne judge of the District Court must follow and apply binding decisions of the Court of Appeal even if she or he believes such decisions to be wrong. Baggs binds me. However it is distinguishable. The distinctions are these:

(a) Baggs is concerned with an action for damages for personal injury for the tort of negligence, not with a claim for statutory benefits under the 1987 Act;

(b) even if that is an insufficient distinction, the facts of this case offer another distinction: the plaintiff only worked for the defendant at the Mt Arthur colliery and no where else – he falls within [43] of the judgment of Sackville AJA;

(c) Mr Baggs had not yet commenced any work at the Pike River coal mine. The present plaintiff had commenced working at the Mt Arthur Colliery on 17 May 2010 and was returning to resume his normal duties at the colliery on 12 October 2010.

To take up the present defendant’s submission recorded at [29] above, the factual circumstances of the plaintiff’s case can be distinguished. If the defendant’s submissions were correct then no coal miner would be entitled to coal miner benefits on a periodic journey because the identity of or classification of the coal miner’s employer is irrelevant under the statutory scheme. This demonstrates the absurdity of the defendant’s argument, as it is clearly Parliament’s continuing intention that workers “in or about a mine” have a special entitlement to the journey provisions and, I infer, the usual coal miner benefits. The plaintiff is entitled to claim benefits as a coal miner.

A “pleading” point

UCPR Sch 11 Pt 2 cl 3 provides that proceedings in this List are usually commenced by statement of claim. At the commencement of the List a form of statement of claim was gazetted by authority of the Chief Judge. That form may be downloaded from the District Court web site. It in no way resembles a statement of claim one would expect to see in common law proceedings. It resembles an Application for Determination, the usual initiating process in the Compensation Court. It requires the plaintiff to provide “particulars”, not pleadings. The relevant part of the document is this:

“1 (a) Date of injury (if over a period of time, state the period as accurately as possible):
(b) Place where the injury happened:
(c) What work was being done at the time of injury:
(d) How did the injury occur:”

In the current matter, the plaintiff completed 1(a) with this matter:

“On 12 October 2010 during the course of this employment with the defendant the plaintiff was involved in a motor vehicle accident on his way to work.”

and each of the remaining questions was answered “As above.” This is sloppy work. The form ought to have been completed thus:

“1 (a) 12 October 2010
(b) New England Highway, Whittingham
(c) On a daily journey between the plaintiff’s place of abode and his place of employment at Mt Arthur coal mine
(d) The plaintiff’s vehicle struck a large pot hole in the Highway, veered left, left the carriageway and collided with a tree.”

When a claim is made under s 10 of the 1987 Act, a plaintiff ought describe the nature of the journey and its termini, i.e. the terminus a quo and the terminus ad quem, the whence and the whither.

This sloppy pleading lead the defendant to make this submission:

“The Plaintiff will undoubtedly submit that in all the circumstances of this journey on 12 October 2010, from the Plaintiff’s home to his place of employment was simplistically, a Section 10 journey claim and the Plaintiff therefore would be entitled to seek relief for the claims that he brings before the Court. Regrettably, the pleadings in this case (and not amended) do not rely on a journey claim pursuant to section 10, what is relied upon in the first amended statement of claim filed on 19 August 2014 in paragraph 1(a): ‘On 12 October 2010 during the course of his employment with the defendant the plaintiff was involved in a motor vehicle accident on his way to work.’ The plaintiff therefore relies that at the time of this accident he was ‘in the course of employment’.”

That submission was made after the defendant conceded that there was no issue that the Plaintiff was on a journey from his home to the Mr Arthur coal mine when his injury occurred! The plaintiff correctly submitted that as the plaintiff was on a periodic journey to work at the time s 10(1) of the 1987 Act deems the worker to have been injured in the course of his employment. If the plaintiff’s solicitors had done their job properly this minor controversy would not have been aired. The defendant has not been taken by surprise and I dismiss its objection.

Quantum

The plaintiff was born on 19 March 1960. At the time of the accident he was 50 years old. At the time of delivery of this judgment he will be 54 years old. The medical evidence is sparse. The plaintiff was taken to John Hunter Hospital by helicopter. He was in hospital for “a bit over a week”. The hospital records are not in evidence. The only documents from the hospital are a CT scan of the brain, cervical spine and chest made on 12 October 2010 and a certificate of incapacity for the period from 12 October to 26 October 2010. That certificate lists the plaintiff’s injuries as “right scapula fracture, multiple right rib factures, bilateral lung contusions.” After discharge from the hospital, the plaintiff came under the care of Dr Vasundhra Salaria, a general practitioner at Greenhills, another suburb of Maitland. There is a “letter” from Dr Salaria, as it is referred to by Dr James Rowe, but it was not put into evidence. Dr Rowe also had available to him a discharge summary from the John Hunter Hospital, but that was not was not put into evidence. In evidence from Dr Salaria are four certificates. The first certifies total incapacity from 27 January 2011, the second and third certify fitness for suitable duties from 18 February 2011 to 18 April 2011 and the final certificate clears the plaintiff as being fit to work from 14 April 2011. Dr Salaria referred the plaintiff to Dr Robert Kuru, an orthopaedic surgeon, at Warners Bay. Dr Kuru saw the plaintiff once and sent a report to Dr Salaria, dated 3 June 2011. The plaintiff had X-rays of his cervical spine taken on 3 June. The radiological report is not in evidence, but Dr Kuru does comment on these X-rays.

The diagnoses made by Dr Salaria in the four certificates are “right scapula fracture, multiple rib fractures and bilateral lung contusions.” However in the first, the doctor also stated:

“Need to Neurosurgeon/Spinal ortho for Neck”

In the second the doctor also states:

“Need Physiotherapy for cervical spine, referred to Spinal Ortho. Surgeon - ? Dr Kuru ongoing neck pains – 6 months from injury”;

In the third the doctor also states:

“Need Physiotherapy for back, referred to Dr Kuru surgeon – ongoing neck pains”

and repeats that formulation in the last certificate.

According to Dr Kuru, the plaintiff complained of neck pain and some non-specific symptoms into his right arm. The first paragraph of Dr Kuru’s report gives this history:

“Thanks very much for asking me to have a look at Stanley Butt for assessment of neck pain and some non specific symptoms into his right arm. I am not sure these are attributable to an injury in his neck. Stanley tells me that he was involved in a motor vehicle accident back in October of last year. He was transferred to John Hunter Hospital where he was diagnosed with fractured ribs in the right side of his chest and a scapular fracture. He also tells me he had fractures of transverse processes of his spine. He returned to recuperate in Tasmania and had some treatment consisting of physiotherapy. For his neck this was massage which he found was associated with headaches. Four months ago he noticed increasing pain in his neck again with headaches. He has a generalised tingling into his right arm. On asking him more specifically the tingling tends to be on the medial aspect of the proximal forearm. Occasionally it will radiate down into the fingers in a C7 distribution. He has been managing his pain with Amitryptyline. He has not had a flexibility based exercise programme for his neck. He has not had any cervical or epidural steroids.”

The history is important because the defendant put to the plaintiff and submits to me that there was a belated complaint of low back pain. In light of that history I can not accept that when Dr Salaria refers to “back” the doctor is referring specifically to the low back, but merely to the spine. The inference can be drawn, and I draw it in light of other evidence, that the discharge summary from the hospital and Dr Salaria’s letter were not tendered as they do not record any complaint of low back pain.

At some stage the plaintiff returned to work for the defendant. The plaintiff said that he thought he returned to work “before Christmas” 2010 but was not sure. Initially he performed restricted duties but, in keeping with Dr Salaria’s final certificate returned to unrestricted duties, probably on 14 April 2011. Later he resigned from the defendant’s employment and moved with his wife to Tasmania. When his resignation came into effect and when he moved to Tasmania are also unclear, but I do know that he was still living in the Hunter Valley when he saw Dr Kuru on 3 June 2011. The move to Tasmania must have been after that date. The plaintiff moved to a suburb of Launceston and found work with Bradken Resources as an OHS officer. He was retrenched by that company on 5 May 2014 and was unemployed when he gave evidence at Newcastle on 19 August 2014.
The plaintiff saw Dr James Rowe, an occupational physician, for his solicitors at Burnie on 29 September 2011. The “current symptoms” recorded by Dr Rowe on that date are these:

“Current Symptoms
Mr Butt said that he continues to have some pain in the right side of his neck that radiates to the right arm. He has some pain in the right shoulder and loss of mobility of the shoulder. He had noticed weakness in his right hand and arm with some tingling about the right, but he said over the last two or three months these symptoms have been improved considerably.”

The plaintiff said that he complained to Dr Rowe on this occasion about his low back and Dr Rowe examined his low back but there is no evidence to corroborate that and the inference I draw from Dr Rowe’s report of 24 July 2012 is that Dr Rowe received no such complaint and made no such examination.

I know from the report of Mr Andrew Hanusiewiez of 13 June 2013, that the plaintiff’s low back was X-rayed on 27 April 2012. Dr Rowe again examined the plaintiff at Burnie on 24 July 2012. Under the heading “Present Condition” Dr Rowe records this:

“Mr Butt said that since I saw him last he has continued to suffer with neck pain and symptoms in the right arm, mostly tingling about the 2nd 3rd and 4th fingers. In addition he has pain in the right shoulder and loss of range of movement of the shoulder and of late he has been developing low back pain but I don’t think it has any relationship to his neck.
He saw a chiropractor and had multiple spinal x-rays and all sorts of abnormalities were pointed out to him by the chiropractor and he has been having manipulations and other treatment by the chiropractor for the last few months. Initially it was twice weekly then once a week and that continues. He has had some massage treatment as well.
He still sees Dr Tempone as his GP but I don’t think he has continued to be issued with a certificate. He has no further specialist appointments.
Since last examination he has had some chest pain but that has not been investigated. It is on the right side and it sounds like a muscular pain. He notices some creaking or grating in his neck.”

There is no evidence, i.e. any report or the like, from any chiropractor or from Dr Tempone who has been treating the plaintiff in Tasmania.

Mr Hanusiewiez was provided with a statement made by the plaintiff. He quotes part of it on page 4 of his very detailed report of 13 June 2013. I do not know when the statement was made but it records these complaints:

“Since the accident I have been having headaches and some pain in my neck, shoulder and chest. Cold weather makes it worse it seems”.

The inference to be drawn from the evidence is that the plaintiff’s low back complaint was of late onset, probably in early 2012, i.e. about 18 months after the accident. I must reject the plaintiff’s assertions to the contrary. However, the plaintiff finds his tabula in naufragio in the opinion of Mr Hanusiewiez, who was qualified by the defendant’s insurer. On page 7 of his report, the doctor says this:

“The Radiologist also reports spondylotic changes and 20% compression fracture of the body on the 1st lumbar vertebra (shown on Figs 14 and 15 of 27/4/12).
Mr Butt complained of pain in his spinal region. He denied having symptoms in his thoraco-lumbar spine prior to his accident so the compression fracture of the body of 1st lumbar vertebra is most likely the effect of the accident. The spondylosis present in his thoraco-lumbar spine is unrelated to the accident.”

Mr Hanusiewiez provides as one diagnosis this: healed wedge compression fracture of the body of 1st lumbar vertebra. If the plaintiff had osteoporosis, a vertebra might appear to be the subject of a compression fracture when it was not, but the doctor points out that the plaintiff does not have osteoporosis (page 19). At the same place the doctor comments that the presence of the fracture may contribute to the rate of progression of the spondylosis, i.e. might increase its rate of deterioration.

There is no doubt on the medical evidence before me that the plaintiff has permanent impairment of his neck and a loss of efficient use of his right arm at or above the elbow. As far as impairment of the neck is concerned, Dr Rowe certifies 12% and Mr Hanusiewiez 10%. For the right arm at or above the elbow Dr Rowe certifies 10% and Mr Hanusiewiez 2%. The plaintiff has degenerative changes in his cervical spine. Dr Kuru said this:

“I was able to access the CT from the time of his accident in the PAC system. There is some atlanto-axial rotation, which I think is postural. There is chronic calcified disc protrusion to the left at C3/4. There are lesser degenerative changes elsewhere in the cervical spine. Interestingly the C6/7 foraminae [sic] are patent.
I referred him for flexion/extension laterals of his cervical spine to exclude atlanto-axial instability. The x rays demonstrated slightly abnormally shaped articular facets of the C2 vertebra which extend anteriorly in front of the odontoid. It is this that has been imaged on the CT and is interpreted as rotatory subluxation. Flexion/extension views demonstrate no instability.”

The atlas is C1, the axis is C2. Another way of describing degenerative changes in the vertebrae is spondylosis. Here there seems little doubt, the plaintiff’s accident triggered off symptoms of cervical spondylosis (exacerbation) or made the condition worse (aggravation). The appropriate diagnosis provided by Mr Hanusiewiez is “Whiplash injury to the cervical spine, superimposed on mild cervical spondylosis.” However, I would not categorise the spondylosis as mild, bearing in mind the calcified disc protrusion to the left at C3/4, identified by Dr Kuru. I accept, therefore, Dr Rowe’s assessment of 12% impairment of the neck.

The loss of efficient use of the plaintiff’s right arm at or above the elbow is a diagnostic quandary. Dr Rowe does not provide me with a diagnosis. In his second report he said this:

“Upper Limbs
His grip in both hands was good. The right and left upper arms are now of equal size when measured at equal points. There was still a vague change in sensation more about the middle three fingers of the right hand.
Some ranges of movement in his right shoulder had improved, others had not. He could abduct and flex to 160o, internal rotation was now only 30 o, external rotation was now 50 o, that is, rotation had decreased. Resisted abduction and internal rotation was uncomfortable.”

He went on to say this:

“With regard to the right shoulder there is an impairment of 7% of the upper extremity due to loss of range of movement[:] this is a 4% WPI. There is no deduction for pre-existing conditions.”

In a supplementary report of 22 August 2012, Dr Rowe said that this was a 10% loss of efficient use of his right arm at or above the elbow. However I do not accept that there is a valid distinction between permanent impairment and loss of efficient use. The 1987 Act uses “permanent impairment” for the back, neck and pelvis but “loss” for other items in the table of maims/disabilities. A loss of the neck, back or pelvis would probably entail death. I accept that Dr Rowe in his report of 24 July 2012 is diagnosing a 7% loss of use of the right arm at or above the elbow.

About the plaintiff’s right upper limb, Mr Hanusiewiez said this, commencing at p 17:

“2. Blunt injury to right shoulder with extra-articular fracture of right scapula.
At the time of examination there were no signs of impingement in the rotator cuff, and no signs of a rotator cuff tear. The only abnormality was quite minimal restriction of movement in flexion and abduction, which did not exceed a loss of more than 159. (see Figs. 2 & 16)
The only objective abnormality identified immediately after the accident was a comminuted fracture of the shoulder blade, which did not extend to the glenohumeral joint.
For the purpose of this report a request was made to refer Mr. Butt to an up to date x-ray of his right shoulder because his claimed severe symptoms could not be explained based on clinical evaluation.
This investigation was performed on 22nd June, 2013. It revealed that the fracture of his scapula has healed with anatomical alignment. Actually there were no signs of the previous fracture except for some irregularity on the coracoid process. The acromioclavicular and glenohumeral joints were normal. (see Fig. 21)
On careful assessment of the x-ray, although not reported by the Radiologist, it was found that Mr. Butt has a congenital abnormality in his acromion process which consists of two parts (os acromiale). (see Fig. 22) This congenital/developmental abnormality may or may not be symptomatic. Mr. Butt states that he did not have a problem with his shoulder prior to the accident. It is therefore reasonable to assume that the accident rendered him to develop some symptoms from this area. The symptoms expected to be are of a type of impingement syndrome, which Mr Butt does not have. The symptoms Mr. Butt claims are well out of proportion to the symptoms expected in the objectively identified pathology.
From an orthopaedic point of view, no further investigation and no further treatment of Mr. Butt’s right shoulder condition is necessary. His short and long term prognoses are good.
The claimed symptoms of a dull ache, stabbing pain and numbness involving his entire upper extremity can not be explained on clinical grounds, and there is reasonable doubt whether they are genuine.”

Later at p 20, he said:

“Mr. Butt’s right shoulder was assessed due to -
* loss of flexion 15 o
* loss of abduction 15 o
Permanent impairment is 2% of the less of efficient use of right arm at or above elbow.
It needs to be stated that each assessed pathology was superimposed on a pre-existing pathology.”

As far as the right upper limb was concerned, Mr Hanusiewiez said this was the os acromiale.

The plaintiff is right-handed (T13.13). The plaintiff readily admitted to amelioration of his right arm symptoms, essentially denying any ongoing radiculopathy. I accept what the plaintiff said about ongoing, albeit intermittent, symptoms in his right upper limb. Those symptoms indicate to me a loss of greater than 2%. I accept, therefore, a 7% loss of efficient use of the right arm at or above the elbow.
I also accept Mr Hanusiewiez’s assessment of the permanent impairment of the plaintiff’s back. At p 20 of his report he said this:

“Mr Butt’s lumbar spine was assessed due to
*20% compression fracture of the body of 1st lumbar vertebra,
Permanent impairment of the back is 10%.”

As he said with the right upper limb, that pathology was superimposed on a pre-existing pathology, in this case thoraco-lumbar spondylosis, which is unsurprising, given that the plaintiff has cervical spondylosis.

Unlike Dr Rowe, Mr Hanusiewiez goes on to assess a deductible proportion. At the foot of p 20 he says this:

“In my opinion, for each condition 40% of the assessed permanent impairment is apportioned to the pre-existing conditions. The remaining 60% of each condition is the result of the accident Mr. Butt sustained on 12 October 2010.”

I cannot accept this assessment. Like Dr Rowe, Mr Hanusiewiez was careful in making his assessment of loss/impairment based solely on pathology caused by the accident of 12 October 2010. If he had said, for example, that the total impairment of the neck or back was 15% due to widespread degenerative changes in the cervical or thoraco-lumbar spine including the assessed pathology caused by the accident, a proportion of the assessment might have to be deducted. However, he did not. The findings I have made under s 66 do not include any pre-existing abnormality in the back or right upper limb.

However, there must be a deductible proportion for the claim for permanent impairment of the neck. It is clear from my finding at [44] that I have taken into account when I determined the impairment of the neck a pre-existing abnormality, cervical spondylosis. This again raises a question as to the applicable law. As stated at [15], the amendments effected by Act No 120 of 1996 regarding deductions for previous injuries and pre-existing conditions and abnormalities do not apply to coal miners. That Act inserted a new s 68A into the 1987 Act and inserted, additionally s 68B. The original s 68A was inserted by Act No 89 of 1995 which also repealed par(g) of the Notes at the end of the Table of Maims/Disabilities. The original s 68A remains in force for coal miners. Fortunately I traced the relevant legal history in Brown v Barnard and Brown Pty Ltd (1998) 17 NSWCCR 275, in which I quote the original s 68A at [51]. The original s 68A dealt only with impairment of the back, neck and pelvis. Subsection (8) was this:

“If there is a deductible proportion for a loss, but the extent of the deductible proportion will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding litigation) that the deductible proportion is 10%, unless this assumption is at odds with the available evidence.”

Here, the evidence is scant and inconsistent, and there is a need to avoid further litigation. The deductible proportion will therefore be 10% of 12%, which reduces the extent of the impairment of the neck to 10.8%.

For coal miners, ss 66 and 67 as they were in force immediately prior to Act No 61 of 2001 remain in force. Indexation of these amounts provided by those sections ceased on 1 October 1995. The maximum payable for individual losses has been since then $132,300. The maximum payable for multiple losses has been since then $160,950. The maximum under s 67 has been since then $66,150. Indexation of these amounts was stopped by Act No 89 of 1995. This regime is mandated by Sch 6 Pt 18 cl 3. This provides for the following:

(a) 10.8% impairment of the neck is $5,715.40 (applying s 81),

(b) 7% loss of efficient use of the right arm at or above the elbow is $7,408.80

The total of those sums is $21,063.00. It exceeds the 10% statutory threshold ($13,230) to s 67.

Under s 67, the plaintiff claims 20% of a most extreme case. The defendant has submitted “it would realistically amount to somewhere between 15 and 20%.” With this latter submission, I agree. Bearing in mind the plaintiff’s age, life expectancy and symptoms I accept that the plaintiff’s experience of actual pain, distress and anxiety caused by his impairments and loss is 18% of a most extreme case. That entitles him to $11,907 under s 67.

Award

I make an award for the plaintiff for:

(a) $5,715.40 for 10.8% impairment of his neck;

(b) $7,408.80 for 7% loss of efficient use of his right arm at or above the elbow;

(d) $11,907.00 under s 67 for pain and suffering resulting from those impairments and that loss.

**********

Decision last updated: 09 February 2015

Medium Neutral Citation:	Butt v Liebherr Australia Pty Limited [2015] NSWDC 3
Hearing dates:	19 August 2014
Decision date:	02 February 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Award for: (a) $5,715.40 for 10.8% impairment of plaintiff’s neck; (b) $7,408.80 for 7% loss of efficient use of plaintiff’s right arm at or above the elbow; (c) $7938.00 for 10% impairment of plaintiff’s back; (d) $11,907.00 under s 67 for pain and suffering resulting from those impairments and that loss.
Catchwords:	WORKERS COMPENSATION – Coal miners – Whether plaintiff a coal miner for the purposes of Sch 6, Pt 18 of the Workers Compensation Act 1987 – Whether plaintiff was a worker employed in or about a coal mine
Legislation Cited:	Coal Mines Regulation Act 1982 Evidence Act 1995 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1926 Workers Compensation Act 1987 Workers Compensation (General) Regulation 1995 Workers Compensation Regulation 2003 Workers Compensation Regulation 2010
Cases Cited:	Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177 Baggs v Waratah Engineering Pty Ltd [2014] HCA Trans 108 Brown v Barnard and Brown Pty Ltd (1998) 17 NSWCCR 275 Benson v Lancashire and Yorkshire Railway Coy [1904] 1 AC 242 Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; (2005) 2 DDCR 744 Fekonja v Lucsan Pty Ltd (1994) 10 NSWCCR 339 Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744 Maurino v Amberlor Pty Ltd (1996) 14 NSWCCR 16 Nolan v Porter and Sons (1910) 2 BWCC 106 (Eng. CA). Pilgrim v Ellavale Engineering Pty Ltd (2003) 25 NSWCCR 521 Presland v Ellavale Engineering Pty Ltd (2005) 3 DDCR 179 Roberts v Fuchs Lubricants (Australasia) Pty Ltd (2002) 24 NSWCCR 125 Select Civil (Kiama) Pty Ltd v Kearney [2012] NSWCA 320 Smith v Brown (1998) 16 NSWCCR 492 Weaver v Tredegar Iron and Coal Coy Ltd [1940] AC 955 Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427
Texts Cited:	C P Mills, Workers Compensation New South Wales (2nd ed 1979, Butterworths)
Category:	Principal judgment
Parties:	Stanley George Butt (Plaintiff) Liebherr Australia Pty Limited (Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr M Newton (Defendant) Solicitors: Slater & Gordon (Plaintiff) HWL Ebsworth (Defendant)
File Number(s):	RJ261/13