Campbell v Rosebin Pty Limited

[2015] NSWDC 339

District Court

New South Wales

Medium Neutral Citation:	Campbell v Rosebin Pty Limited [2015] NSWDC 339
Hearing dates:	11 November 2015
Date of orders:	11 November 2015
Decision date:	11 November 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Redemption application approved By consent, orders in accordance with short minutes of order
Catchwords:	WORKERS COMPENSATION – Coal miners – Redemption – Adequacy of amount – Whether shoulder injury causally related to knee injury
Category:	Principal judgment
Parties:	Susan Campbell (Plaintiff) Rosebin Pty Limited (Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant, GIO) Mr M Newton(Defendant, QBE)   Solicitors: Slater & Gordon (Plaintiff) Turks Legal (Defendant, GIO) Moray & Agnew (Defendant, QBE)
File Number(s):	RJ510/2013
Publication restriction:	No

Judgment

1. HIS HONOUR: There is currently before me a redemption application in the sum of $100,000. One of the matters I must consider is the adequacy of the amount proposed for the redemption.

2. The plaintiff relies upon five frank injuries in the course of her employment with the defendant. The first occurred on 2 August 2014 when the plaintiff suffered an injury to her left knee when she was picking up garbage and turned to her left to move a garbage bin and twisted her left knee. The second event occurred on 11 November 2005 at the Mount Thorley mine where the plaintiff suffered an injury to her back and right hip. The third event occurred at the Mount Thorley mine on 10 December 2007 when the plaintiff has again injured her left knee. The fourth injury occurred on 22 May 2011 when the plaintiff injured her left knee when she was walking down stairs and her knee gave way, causing her to fall onto cement. That appears to be a frank injury affecting the plaintiff’s patella in particular. The final event occurred on 25 May 2011 when the plaintiff was mopping a floor in a crib room at the Mount Thorley Warkworth mine and twisted her left knee. It is to be noted that there is no allegation made in the particulars of the frank injuries of any injury to the plaintiff’s left upper limb or her left shoulder.

3. According to the statement of claim, it is alleged that the plaintiff sustained an injury to her left shoulder as a consequence of the injury to her left knee. There is no evidence that the type of work that the plaintiff did caused any relevant injury to the plaintiff’s left shoulder. The radiological appearances, in particular an MRI scan of the left knee made on 16 May 2011 and a further MRI scan performed on 19 September 2012, indicate that the plaintiff suffered a tear of part of the medial meniscus of her left knee which was the subject of pre-existing degenerative change. There was also a possibility that there may have been some injury to the medial collateral ligament. The second MRI scan of the left knee indicates that the plaintiff may have a weak anterior cruciate ligament because of degenerative change. The evidence is that the plaintiff, who is currently 55 years of age, is short in stature and carries too much weight and that could well be the cause of the degenerative condition in her left knee.

4. Two relevant histories have been taken of the plaintiff’s left shoulder problem. The plaintiff was seen on 30 April 2015 by Dr Raymond Wallace, an orthopaedic surgeon retained on behalf of the defendant. His history is this:

“She was involved in an incident at home on 4 September 2014. At that time, she was exiting the kitchen when her left knee gave way and she fell onto her left side on a hotplate stand. She was taken to Singleton Hospital and then transferred to Maitland Hospital. She underwent a CT examination of her left upper limb which showed evidence of a fracture involving the left proximal humerus. She was prescribed analgesic medication and her left arm was immobilised in a sling for a week. She then completed six sessions of physiotherapy at Maitland Hospital, followed by a home exercise program. She is currently continuing with a home exercise program and use of analgesic medication. She has had no further treatment for her left shoulder condition.”

Dr Wallace also took a history that the plaintiff continues to suffer symptoms in her left shoulder, including global aching pain around about the joint and in the lateral deltoid area. The pain was said to be constant and worse with lifting or repetitive use of the left arm. It was not relieved by rest. Based on the history obtained, Dr Wallace thought that the plaintiff’s left shoulder condition was due to injuries sustained as a result of an episode of left knee instability at home on or about 4 September 2014. He thought it too early to assess any permanent loss of efficient use of the left arm at or above the elbow resulting from the injury to the plaintiff’s left shoulder.

5. The other doctor to have a history of this event is Dr Ghabrial who saw the plaintiff on 20 March 2015. Like Dr Wallace, he had a history of the plaintiff’s fall when she was walking through the kitchen at home caused by her left knee giving way. He believed that the plaintiff had been immobilised in a sling for a period of two weeks after the diagnosis of the fracture of the left humeral head. He also believed the plaintiff had sustained some damage to the ulnar nerve at the shoulder which he thought was described in some nerve conduction studies. He had formed the view that the plaintiff had lost 50% of the efficient use of her left arm at or above the elbow as a consequence of the injury to her left shoulder on 4 September 2014.

6. Accordingly, the quantum of the redemption must be affected by a consideration as to whether the plaintiff can establish that the injury to her left shoulder caused by the event on or about 4 September 2014 was causally related to the plaintiff’s left knee condition. Furthermore, the plaintiff tells me in her evidence that the major cause of her current inability to work is due to the condition of her left shoulder.

7. The only relevant documentation that the parties have been able to put before me are the triage notes of the Singleton District Hospital made on 5 September 2014. They clearly relate to the plaintiff. They show the plaintiff as arriving at the hospital at five minutes before 1am. The triage notes are these:

“Female aged 53 years, 11 months, presents with fall, unspecified, fell inside house tonight [,] put left arm out to brace herself. Pain left upper arm with loss of sensation from hand to elbow. Has drunk five beers tonight, smells strongly of alcohol.”

The hospital triage notes have been made by Ms Marion Banks who I must assume is a registered nurse. On the same piece of paper is a copy of notes made by Dr William Debelak. Dr Debelak noted a fall at home. He noted that the plaintiff was “inebriated plus plus”. He took extensive notes of the plaintiff’s alcohol intake but made no record of any complaint of the plaintiff’s knee giving way causing her to fall. Indeed, his notes are structured in such a fashion as to suggest that the reason for the fall was the plaintiff’s inebriation. The same is the only reason postulated by Ms Banks as to the cause of the plaintiff’s fall.

8. As I was making these comments, counsel for the plaintiff tendered a note made by a physiotherapist. The note was made 9 September 2014.

EXHIBIT #C-C NOTE BY PHYSIOTHERAPIST DATED 09/09/14 TENDERED, ADMITTED WITHOUT OBJECTION

The relevant history is that the plaintiff tripped and fell onto a cupboard on 5 September 2014, leading to a fracture of the left humeral head. The note also records that the plaintiff had six falls in 2014 because of her left knee giving way. However, a history of tripping and falling is not a history of the knee giving way causing the plaintiff to fall. A trip is a physical activity not caused necessarily by having a weak or unstable knee. Although the plaintiff had said that antecedent to the event that occurred on either 4 or 5 September 2014 she had a history of instability in the knee, no history had previously been given of falls caused by the plaintiff’s knee giving way. The only history to that effect is that recorded by the physiotherapist after the event.

9. In these circumstances, the Court could not be persuaded on the balance of probabilities that the plaintiff’s left knee gave way causing her to fall and fracture her left humeral head on 4 or 5 September 2014. There is no contemporaneous record of the plaintiff’s knee giving way causing that fall. It appears that at the time it occurred, the expert practitioners attending upon the plaintiff believed that it was related to her inebriation. Subsequently, a physiotherapist said that it was caused by a tripping but the histories of the plaintiff’s fall being caused by her knee giving way are all of more recent invention.

10. Accordingly, it appears to me that the sum proposed for redemption is appropriate. In the circumstances, I approve the redemption. By consent orders in accordance with short of minutes of order which I have initialled and placed with the papers.

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Decision last updated: 27 January 2016