Hall v SESLS Industrial Pty Limited

[2024] NSWDC 347

District Court

New South Wales

Medium Neutral Citation:

Hall v SESLS Industrial Pty Limited [2024] NSWDC 347

Hearing dates:

26-28 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I make an award for the plaintiff for $581.30 per week from 7 March 2023 to 10 May 2023. I order the defendant to pay the plaintiff's expenses under s 60 in respect of the period 14 February 2023 to 10 May 2023. I order the defendant to pay the plaintiff's costs.

Catchwords:

WORKERS COMPENSATION – Determination of the nature of the injury – Determination of the period of incapacity – Quantification of the extent of partial incapacity.

Legislation Cited:

Workers' Compensation Act 1926

Workers' Compensation Act 1987

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Plaintiff – Byron Charles Hall
Defendant – SESLS Industrial Pty Limited

Representation:

Counsel:
Plaintiff – Mr Hickey, C.
Defendant – Mr Rowles, T.

Solicitors:
Plaintiff – Shaw & Bunner Legal.
Defendant – Hicksons Lawyers.

File Number(s):

2023/00183837

Publication restriction:

Nil.

Judgment

Claim

1. HIS HONOUR: The plaintiff Mr Byron Charles Hall claims weekly payments of workers' compensation from 15 February 2023 to date and continuing for total incapacity. In the alternative he claims weekly payments of compensation for deemed total incapacity pursuant to s 11(2) of the Workers' Compensation Act 1926 as its operation is preserved for those who work in or about a coal mine pursuant to the Workers' Compensation Act 1987 Schedule 6, Part 18. However, no reliance is now placed on s 11(2) of the former Act. The plaintiff himself believes that he is totally incapacitated for any form of work known to him and he has not been actively seeking any work at all.

2. The allegation made in the Statement of Claim is that on 14 February 2023 the plaintiff suffered an injury to his right knee when he stepped into a hole whilst performing a pre‑shift inspection of a coal loading machine which he was due to drive on that day.  In particular, the plaintiff says that since that time he has been, as I said, totally incapacitated for work and is awaiting to have surgery to his right knee to reconstruct a torn anterior cruciate ligament.  The case is far from an easy one.

Injury and Treatment

3. According to Exhibit E, the plaintiff commenced working for the defendant on 7 June 2022.  That describes the employer as SES Labour Solutions.  I assume that SESLS Industrial Pty Ltd is the formal name of the defendant company, the initials in the company title representing SES Labour Solutions.  However, it appears that the plaintiff knew his employer as "Brunel".  The statement of claim suggests that Brunel was some form of address, but it appears to be some alternative trade name.  The plaintiff was working for the defendant at the Maules Creek Open Cut Coal Mine near Boggabri.  I assume that the defendant company was a contractor to the operator of the Maules Creek mine.  Exhibit D is a document headed "Whitehaven Group" which I believe indicates that the operator of the coal mine was in fact the Whitehaven Group.

4. 14 February 2023 was a Tuesday.  According to Exhibit E the plaintiff had not worked for the preceding seven days.  According to a history given by the plaintiff to Dr Hardeep Salaria, an orthopaedic surgeon qualified by the plaintiff's solicitor, the plaintiff had not worked for the preceding eight days because a four‑day break had been extended by an extra four days off work due to the plaintiff injuring his left ankle where he stumbled in the driveway of his home.  The plaintiff had attended the mine at 6am.  He went out onto the actual mine where his loader was parked and commenced to walk around his loader to ensure that it was in good working order.  The incident relied upon by the plaintiff occurred at approximately 7.20am.

5. The plaintiff did not submit a claim for compensation until 14 March 2023, a month later.  That document is Exhibit F.  One will note that it has been filled out in two hands, each hand using a different ink.  The ink used by the plaintiff when he signed it was blue. Most of the document has been filled in using blue ink but the fillings in were matters peculiar to the plaintiff such as his name and date of birth, his employment details, the part of his body injured and signature.  Only one part of the document has been filled out in black ink and it is clear that the person using the black ink was not the plaintiff.  The black ink represents an explanation of how the plaintiff's injury occurred.  It says this:

“On 14 February 2023 at 7.10am I was doing my walk around on loader 812.  Whilst doing so I have stepped on uneven ground, all my weight went onto my right knee which twisted and gave me a sharp pain.  Continued to work until 11am.  Then Leo (my P6 supervisor) noticed me limping.  Took to office for first aid."

6. A live issue in this case is whether the plaintiff actually twisted his right knee at the time his right foot stepped into what was otherwise described as a hole in the surface of the mine in which the plaintiff was working.

7. Exhibit D is the first aid treatment record using the stationery of the Whitehaven Group.  There are two hands on it.  The majority of the writing is in blue ink and I assume that it was made by the first aid attendant whose first name was Rebecca.  A second hand has written on the document with black ink and that I assume that she is the person that the plaintiff referred to as either a physiotherapist or a former physiotherapist.  That lady's surname appears to be Glover.  I have some difficulty understanding what her first name is.  It appears to be ‘Shar’, which may be short for Sharon, or it may be some other name.

8. The details written by Rebecca are these:  the incident is alleged to have occurred at 7.20am on the mine floor.  The date and time of treatment is given as being at 11.54am.  The history of the accident recorded is this:

"Stepped into hole, twisted his right ankle/knee.” 

The suspected injury or illness given in the form is 'sprained knee'.

9. The first aid observation made by Rebecca was this:

"Slight swelling on knee."

10. The treatment given by Rebecca is recorded thus:

"Ice pack applied to area.  Tried elevating, caused discomfort to area."

11. Written in by Ms Glover in black ink is this as to the suspected injury:

"Hyperextension of knee, hamstring strain, cannot fully weight bear."

12. Ms Glover has written that the plaintiff's pain level at the time of the event was 8 out of 10 and at the time that she spoke with the plaintiff clearly after 11.54am was 6 out of 10.  Ms Glover has written in under the heading "Treatment" that the plaintiff's knee was strapped and there was to be a review by "Resile".  Resile is an organisation in Queensland.  Its formal title is Resile Pty Ltd, and it gives a postal address of PO Box 693, Hamilton, Queensland, 4007.  Its email address is ‘[email protected]’ It appears to be a healthcare provider to remote areas.

13. Exhibit 2 is a document made by Dr Robert McCartney, an occupational physician.  Clearly from the document itself he was an employee of or associate in Resile.  He conducted a "file review" which bears the date 9 June 2023 based upon the records available to him. It is extremely helpful.

14. At the top of page 2 of Dr McCartney's report of 9 June 2023 he quotes the letter of referral to him.  The first three paragraphs of that referral letter are these:

"On 14/03/23 Mr Hall returned to work following a two‑week absence.  During this period of absence Mr Hall informed his employer via email dated 11/02/23 that he had rolled his left ankle resulting in significant pain and swelling.  He advised he had been non‑weight bearing and applying ice to the ankle.  He stated the swelling had gone down however the ankle was still a little tender.  Mr Hall was instructed to obtain a full medical clearance and completed an assessment of functional capacity against the inherent requirements of his role prior to returning to work.

Unfortunately, Mr Hall failed to obtain this clearance and returned to work on 14/02/23.  Mr Hall commenced shift at 6.30am where he completed prestart before he travelled to the pit to commence operation of a Loader.  Mr Hall reported that during his walk around the machine in the first hour of his shift back (7.20am), he 'stepped into a hole' which put him off balance causing him to twist his right knee.  Mr Hall did not report this event until 11.30am on 14/02/23.

Mr Hall was seen immediately by the on‑site physiotherapist and a Resile consultation was completed with Dr Helena Hurst.  Over the coming days Mr [Hall] reported on several occasions that he had improved dramatically however on each subsequent consultation with Resile he would then report no change in his symptoms."

15. The plaintiff did concede in cross‑examination that he was supposed to bring with him a clearance to return to work on 14 March 2023, but he did not do so. Nevertheless, he was permitted after he spoke with I presume persons higher in the hierarchy of the defendant that he could return to work without the necessary clearance.

16. At the foot of the second page of the report Dr McCartney records the notes made by the Resile physiotherapist, Ellen Watson.  Those notes are these:

“Performing walk around truck on Go‑line.

New injury.

Right knee.

Provisional diagnosis:  sprain of biceps femoris tendon,?  some patella [sic] fat pad impingement.

Suspected cause of injury:  slip or trip fall

Stepped into divot on Go‑Line whilst performing truck walk‑around.

Action taken:

Taping

RICER

Analgesia

Referral to Resile Telehealth Service

Advice given:  unable to return to work without precautionary duties (referral for medical assessment with doctor).

Provisional prognosis:  1‑3 physiotherapy reviews (pre‑approved)"

17. The report then records the teleconference notes made by Dr Helena Hurst on 14 February 2023.  Those notes are these:

"Information of injury:

-   Walking around the loader, foot stepped into a hole and right knee hyperextended.

-   Continued to work.

-   Physiotherapy impression:  hyperextension of knee with a mild hamstring strain.  Strapped.

-    Right knee strapped up at present by physio.  Saw at posterior aspect of knee.

-    Lot of pain inhibition.  ACL [anterior cruciate ligament] feels okay at time of examination.  Biceps femoris flexed.  Most comfortable to walk on his toe.  Patella normal.  No areas of significant pain on patella movements.

-    Impression from physio is biceps femoris sprain with some fat pad entrapment.

Recommendations:

1.   Precautionary duties:  weight bear tolerated, avoid walking on uneven ground, avoid jarring and jolting forces to knee, avoid twisted forces to right knee.

2.   Strapping as per physio.

3.  Over the counter analgesia (Paracetamol and Ibuprofen, take as prescribed on the packet).

4.  Ice if swelling occurs.

5.  Review in 24 hours with Resile."

18. The next part of Dr McCartney's report records a teleconference that Dr Helena Hurst had with the plaintiff on the following day, 15 February 2023.  It is clear that the plaintiff attended work on the morning of 15 February 2023.  There is film which very briefly shows the plaintiff entering the building known as the "White House" at the Maules Creek mine which appears to be the building where all workers enter to commence their shift and whence all workers who have completed their shift depart.  In film exposed on 14 February 2023 one can see new miners walking into the White House carrying bags and safety helmets and wearing clean clothes, and miners walking in the opposite direction who all have dirt, dust or coal grime on their clothing indicating that they are leaving the mine having completed their shift.

19. The notes made by Dr Helena Hurst on 15 February 2023 are these:

“Right knee:  walking and range of movement improved today.  Has been walking without any assistance this morning, felt like everything had improved, however walking to the first aid room, feels like he may have overdone it as he had a slight pain 'tweak', over the front of his patella.  Ice in first aid to prevent swelling and has taken some pain relief.

Felt prior to the tweak that he had full range of movements and was keen to get back to usual duties.

Explained at present, although there is improvement, the knee can be vulnerable, so should remain on precautionary duties today and we will reassess tomorrow."

20. Dr Hurst clearly recommended that the plaintiff remain on what she called "precautionary duties", that is restricted duties, and that he was to take over‑the‑counter pain relief medication if required and also to apply ice to his right knee if swelling occurred and that there be a further consultation on the following day.

21. The notes made by Dr Hurst on 16 February 2023 are these:

“Right knee ‑ bought a knee brace, walking around today, constant niggle 3/10, feeling tight down the posterior aspect, tender under the patella.  Some pain on weight bearing.

95% extension limited by pain, 95 flexion, again limited by pain and feeling of instability.

Not improving from yesterday.

Mild swelling ongoing.

Not taken any analgesia for his pain.”

22. Again, Dr Hurst recommended that the plaintiff stay on precautionary duties and again made the same recommendations as previously, with the next review with Resile to be on the following Monday afternoon.  Dr Hurst recommended on Thursday, 16 February that there be a review with Resile on the afternoon of Monday, 20 February.  However, the next note was made on Saturday, 18 February and the notes made were by the Resile physiotherapist Ms Ellen Watson.  The notes she made are these:

“Improved pain for a couple of days, now same, same location.

Description of pain is vague however consistently reports pain, lateral posterior knee, head of [fibula].

?  posterior cruciate ligament tear but?  old in nature as when sitting in extension there appears to a tibial sag but it isn't palpable with clinical assessment if old.

?  if the structures around the right knee have adapted to the deficiency.

Offered re‑taping.  Worker reports that tape applied on Tuesday helped for approximately two days but then no longer helped.  Bought a stretchy elastic knee sleeve and finds that helps more.

Strength home exercise program.

Other ‑ facilitated telephone review with Dr Rob McCartney (Resile).  Doctor McCartney advises that Mr Hall should have an MRI scan next week to assist with diagnosis.

Unable to return to work without precautionary restrictions whilst awaiting outcome of medical investigations next week.

Provisional prognosis:  1‑3 physiotherapy reviews (preapproved).”

23. On the same day a call was made to Dr McCartney.  The notes made for that attendance are these:

"Employee reports persisting knee pain (posterior lateral), swelling, loss of motion and a feeling of instability.

on‑site physiotherapist reports diminished flexion and difficulty fully examining ligaments.

mechanism suggest hyperextension buckle.  Possible cruciate, meniscal injury.

Given persisting symptoms and signs I recommend MRI.

Has two more shifts left before completion of swing when he returns to Newcastle.

I will coordinate an appointment for an MRI in Newcastle early next week

In the meantime he can remain on appropriate suitable duties while receiving conservative management (compression bandage, over the counter anti‑inflammatory medication, analgesic medication and appropriate precautionary duties)."

24. The MRI scan was carried out on Friday, 24 February 2023.  It was carried out by Dr Brad Macdonald.  A copy of the MRI scan report is Exhibit M.  The findings made by Dr Macdonald are these:

"Unfortunately all sequences significantly degraded due to patient motion making diagnostic quality poor.  There may be a mild medial collateral ligament sprain.  Lateral collateral ligament appears to be intact.  There is an anterior cruciate ligament rupture.  Posterior cruciate ligament intact.  Minimal anterior tibial translation.  Medial meniscus appears small but quality of the images due to motion is poor.  I suspect there is displaced bucket‑handle fragment sitting in the intercondylar fossa.  There is gross intra substance signal through the posterior horn and body of the lateral meniscus possibly representing a degenerative horizontal cleavage tear with a small lateral paragraph meniscal cyst measuring up to 6mm.  There is a minor degree of arthropathy present.  There may be some fissuring of lateral patella cartilage.  There is a hemarthrosis.  No Baker's cyst.  Flexor and extensor mechanisms intact."

25. The conclusion reached by Dr Macdonald was this:

"Likely medial collateral ligament sprain and an anterior cruciate ligament rupture with hemarthrosis.  Possible displaced bucket handle tear medial meniscus with degenerative horizontal cleavage tear posterior horn and body lateral meniscus associated with parameniscal cyst.  No obvious bony injury."

26. Exhibit E, the employer's incident notification form was made on 7 March 2023.  It records that at that time the plaintiff's injury was a "no lost time" event meaning that the plaintiff had not lost any time from work and, therefore, that he had not suffered any loss of wages.  It would appear that throughout his work up until at least 6 March 2023 the plaintiff was, when he was due to be on shift, actually going to work but probably on his precautionary work regime.

27. I assume from the notes made by Dr Robert McCartney on 18 February 2023 that the plaintiff was to continue working until Monday, 20 February and then was to return to Newcastle and hence the arrangement for the MRI scan on Friday, 24 March 2023.  The first certificate of incapacity issued to the plaintiff was issued by Dr Harriet Nwachukwu.  That records that Dr Nwachukwu examined the plaintiff on 3 March 2023, but she was given a date of injury by the plaintiff of 18 February 2023 which was incorrect.  Nothing turns on that.  The certificate which is Exhibit G tells me that the plaintiff required treatment between 3 March 2023 and 9 March 2023 when he was to be reviewed.  The "treatment" according to the certificate was analgesia, precautionary duties and some physiotherapy.  The certificate gives the restrictions to be placed upon the plaintiff's ability to perform normal work.

28. In Exhibit 2, the report of Dr McCartney, there are further notes made by Dr Nwachukwu on 3 March 2023.  They are these:

"posterior/lateral and kneecap pain on flexion, tightness on knee extension

can weight bear

describes pain at 6‑7/10, stabbing in nature

says pain sometimes occurs spontaneously

denies neurological symptoms

notes that he had MRI scan last Friday...

has been operating a vehicle without issue

was supposed to be at work from Friday 24 to 27 February then off until March 6

due back at work on March 6 2023"

29. I will not bother at this stage of quoting Dr Nwachukwu’s impression of the nature of the injury or her recommendations; however, her recommendations end with a suggestion that the plaintiff provide a Workers Compensation claim by 9 March 2023.

30. As I think I have already mentioned, the claim for compensation has been dated by the plaintiff as 14 March 2023.  Nothing turns on the fact that it may have been requested to be provided earlier; however, at the time the plaintiff provided the Workers Compensation claim form, he had moved to live in Orange with his mother and his brother.

31. The next certificate of Dr Nwachukwu has been the subject of debate as to its date.  Doing the best I can, it appears to be dated on its third and last page, 14 March 2023.  Exhibit 2 indicates that it was dated 9 March 2023 but that cannot be right because the notes made by Dr Nwachukwu at the relevant time record events that had happened on 11 March.  I shall, therefore, go with what my reading of the second certificate Dr Nwachukwu shows, being the date 14 March, and when I read Exhibit 2 I will take the notes which are said to have been made by Dr Nwachukwu on 9 March as being notes made on 14 March.  The notes made by Dr Nwachukwu on 14 March 2023 are these:

"Results of right knee MRI discussed

was due to work from 6 March 2023 to 9 March 2023, however he states that as he could not walk he did not return to work

he is currently in Orange NSW (4.5 hours from camp [at Boggabri]), as he had a falling out with housemates in Newcastle and vacated his premises

he is due to return to work from 14 March 2023 to 19 March 2023 (three day shifts followed by three night shifts)

from 19 March 2023 he will return to Orange where he is living with his parents

he notes that his mother can drive him to any appointment required

describes pain at 6‑7/10, stabbing in nature

on Saturday 11/3/23 he was pulling up shorts and heard a snap and then couldn't walk for the next three days (11/3 to 13/3)

pain worse on flexion, extension and standing for long periods of time

pain also noted to be worse on driving for long periods of time, however states that he can emergency brake if required

pain sometimes occurs spontaneously

can now weight bear

denies neurological symptoms"

32. The inability to ambulate was first complained of to Dr Nwachukwu as occurring on Saturday 11 March 2023.  This event is also the subject of a history recorded by Dr Daniel Posel, an orthopaedic surgeon retained by the defendant.  The relevant history is this:

"Byron Hall reports a further injury to his right knee at home on 3 or 4 March 2023.  He stated he was getting changed.  He pulled his shorts down to the ground, he then reports kicking his shorts out of the road using his right leg, he reports a 'twang of discomfort' on the inner aspect of his knee.

Comment:  It would be distantly unusual for a patient with an acute injury to their right knee two weeks earlier, with reported ongoing discomfort, to elect to kick their pants out of the way with the affected lower limb.

Byron Hall then reports being unable to walk for more than 24 hours; he stated he spent three days in bed.

Within a few weeks of the original injury of 14 February 2023, Byron Hall stated that he could no longer afford to pay the rent for his room in Newcastle.  He was, therefore 'kicked out'.  He stated a friend helped him place all his possessions (three to four bags) into his car and Byron Hall drove himself from Newcastle to Orange."

33. It is more likely that the date provided by Dr Nwachukwu as to the event at home which caused an inability to ambulate for three days was more accurate than the information given by the plaintiff to Dr Posel about the time of the event.  Leaving aside the dispute about the dating of this event at home, Dr Nwachukwu recorded that it was caused when the plaintiff was pulling up his shorts, but according to Dr Posel the event occurred when he was taking off his shorts.  Whether his shorts were underwear or outerwear I do not know. However, as I understand the plaintiff's evidence yesterday, he was in fact taking off his shorts and kicking them away. That led to the sudden increase in pain which rendered him unable to walk and made him rest in bed for three consecutive days. That is suggestive of some pathology going on at that time.  It was quite different to the pathology originally complained of.

34. The next set of notes made by Dr Nwachukwu were made on 17 March 2023.  There is also in Exhibit G a certificate of that date from Dr Nwachukwu.  The notes in Exhibit 2 record that he was due to return to work on 14 March 2023 but that when he went to the mine site he was turned away and was told that he was not to return until after he had surgery that had been proposed to him.  Who proposed the surgery to him at that time is not clear.

35. In Orange, the plaintiff was referred to Dr Andrew Ashton, an orthopaedic surgeon.  It would appear from Exhibit H that the referring doctor was Dr Sonja Kauffman of the Orange Aboriginal Medical Service.  Exhibit H is the certificate which bears date 24 March 2023 under the hand of Dr Kauffman which recorded that there had been a referral to Dr Andrew Ashton, and that there was an MRI performed and physio prescribed, and that there was also to be an orthopaedic review.  The certificate states the plaintiff was fit for some type of employment commencing on 24 March 2023 for 12 and a half hours a day for four days a week, which I understand to be the normal hours of a plant operator at the opencut coal mine at Boggabri.

36. When the plaintiff first saw Dr Ashton is quite unclear.  Exhibit N is a report of a second MRI scan performed on the plaintiff's left knee on 20 April 2023.  It was addressed to Dr Andrew Ashton; however, it might be the case that the test was ordered by a general practitioner who requested the radiologist to address the report to Dr Ashton.  The report itself bears date 23 April 2023.  According to Dr Salaria's report, the plaintiff first saw Dr Ashton on 28 March 2023.  Dr Ashton's first report bears date 11 April 2023.  According to Dr Posel, that was the date of the plaintiff's examination by Dr Ashton but the report itself does not say so.

37. The report of the MRI scan of the plaintiff's right knee made on 20 April 2023 is reported in Exhibit N which is dated 23 April 2023 in this fashion:

"Indication:  assessed ACL rupture, bucket handle medial meniscal tear, unstable lateral meniscal tear.  Assess intra‑articular damage.

Protocol:  routine right knee MRI protocol.

Comparison:  none.

Medial Compartment.

Meniscus:  macerated circumferential tear of the medial meniscus with meniscal fragments adjacent to the anterior horn and a small meniscal fragment at the posterior intercondylar notch adjacent to the posterior horn.  There is meniscal extrusion.

Cartilage:  normal.

Stabilisers:  superficial grade two chondral damage at the posterior weight‑bearing surface of the median femoral condyle.

Lateral Compartment.

Meniscus:  complete tear of the posterior root attachment with meniscal extrusion.  Vertical longitudinal tear in the region of the anterior horn.  Meniscal degeneration with meniscal substance hyperintensity and intra‑meniscal cyst measuring 5mm.  Several small parameniscal cysts adjacent to the anterior root attachment.

Cartilage:  Grade three chondral damage at the posterior weight‑bearing surface of chondral delamination at 3mm in posterior weight‑bearing surface.

Stabilisers:  normal.  Intact posterolateral quarter stabilising structures.

Head of fibular/TFJ:  normal.

Patellofemoral compartment.

Cartilage:  multifocal grade two‑three chondral fissures at the medial and lateral patella facet.

Effusion and synovitis:  small effusion.  Loose bodies at the posterior intercondylar notch adjacent to the tibial insertion of the posterior cruciate ligament and posterior root attachment of the medial meniscus.  The largest measures 8mm in size.

Popliteal fossa:  normal.

Bones and muscles:  no recent fracture or bone bruise.

Other:  no significant additional findings."

38. The impression given by the radiologist, Dr King Yong, is this:

"1.  Complete ACL rupture.

2.  Macerated circumferential medial meniscal tear with meniscal fragments at the posterior intercondylar notch and adjacent to the anterior horn.

3.  Complete tear of the lateral meniscus posterior root attachment.  Small vertical longitudinal component in the region of the anterior horn.  Meniscal extrusion and intra‑meniscal and parameniscal cysts.

4.  Small effusion.  Loose bodies at the poster intercondylar notch/posterior root attachment of the medial meniscus.

5.  Grade three chondral damage of the lateral femoral condyle posterior weight‑bearing surface with a 3mm region of chondral delamination.

6.  Grade two‑three chondral fissuring of the patella surface."

39. The history obtained by Dr Andrew Ashton is this:

"Thanks for referring Byron Hall, a pleasant 38‑year‑old fellow who injured his right knee at work at the coal mines when he was walking on uneven, slippery coal, checking his machine, when his leg became caught in coal, causing him to fall, twisting the knee, suffering a pivot shift‑type injury.

He has not had any previous knee injuries or symptoms in the past.  The injury occurred almost two months ago.  I note at the time of injury he had significant swelling and difficulties walking.  One week later, things seemed to flare up further, with difficulties walking and more pain in the medial aspect of the knee."

40. The doctor then provided his view of what the MRI scans showed and expressed the view that the finding of hemarthrosis shown on the first scan was consistent with an acute injury, however, no hemarthrosis is expressed in the second scan.  In his report of 11 April 2023, Dr Ashton refers to requiring a repeat MRI scan, for which he gave the referral.  I assume that is the MRI scan taken on 20 April 2023, and reported on 23 April 2023.  The next report I have from Dr Ashton bears date 14 April 2023, and is addressed to Coal Mines Insurance.  He provides the diagnosis:

"Clinical examination and MRI scans confirm an ACL rupture and an MCL sprain.  There was some movement artefact on the MRI scans, though there was evidence of what looks to be a medial meniscus bucket handle tear, and also a fairly significant complex‑type tear of the lateral meniscus.  There was a small perimeniscal cyst associated with this."

41. It is clear that at that stage, the doctor did not have available to him the second MRI scan, and he is using the plural "scans" to refer to only one set of MRI photographs.  Under the heading "prognosis", Dr Ashton said this, in the report to Coal Mines Insurance:

"Byron is likely to have ongoing instability of the knee, given the incompetent ACL, and he is also likely to have ongoing symptoms from his meniscal pathology, which looks to be unstable and impinging in the knee.

The prognosis in terms of getting him back to work is that he will require an anterior cruciate ligament reconstruction, with assessment of either repair or debridement of the meniscal tears as required."

42. As far as fitness for work was concerned, Dr Ashton thought the plaintiff could perform "light sedentary duties only".  There is a further report from Dr Ashton of 14 June 2023, but that does not carry the matter any further.  As I have earlier mentioned, Dr Hardeep Salaria was qualified by the plaintiff's solicitors.  He examined the plaintiff on 9 August 2023 and provided a report bearing date 10 August 2023. 

Medico-Legal Opinion

Dr Hardeep Salaria

43. In his history, Dr Salaria noted that immediately following the event on 14 February 2023, the plaintiff could walk, and despite his discomfort, he continued his inspection of his loader, and given that the right foot was minimally engaged during driving of the loader, he proceeded to operate the loader until Leo, his supervisor, intervened at around 11am.  The doctor's opinion was this:

"In this case, the decision to deny the claim was primarily based upon the absence of bone bruising, a frequent ACL injury‑associated MRI scan finding.  Although bone bruising is commonly observed in acute ACL injuries, the ACL tears can also happen without bone bruising.  The occurrence of bone bruising depends on various factors such as the forces applied, the injury mechanism, in the individual ‑patient characteristics.  While most high energy traumatic injuries involve bone bruising, it is possible for an ACL tear to occur without the MRI signal changes of bone bruising.

In Mr Hall's case, the twisting injury he experienced, has aggravated, and exacerbated a previously asymptomatic knee degenerative changes due to factors such as his age, the nature of his job, and the cumulative wear and tear from previous sports and work activities.

Mr Hall denies previous major knee injuries.  He had never required any prolonged treatment, rest or surgeries."

44. Dr Salaria then refers to the plaintiff’s undergoing the compulsory medical examination required of those seeking to join the coal mining industry, and then referred to the plaintiff’s having worked at other mines during the past three years and having undergone two or three medical assessments during that period of time.  Dr Salaria pointed out that the plaintiff was not diagnosed with any functional limitations at those testings.  However, those tests from this Court's long experience in hearing coal mining matters is that many coal miners who have had major injuries in the past, pass their "pre‑employment medical" examinations with flying colours and go back to doing the work that they had been previously been doing, albeit in which they had previously injured parts of their bodies, such as their knees, their hips, their back, their neck or their shoulders. I put little weight on the fact that previously the plaintiff passed some coal mines industry pre‑employment medicals. 

45. One thing that Dr Salaria's opinion does establish is that the plaintiff had, before the event of 14 February 2023, degenerative changes in his knee, which the doctor attributed to the plaintiff's age, the nature of his job and "cumulative wear and tear" from previous sports and work activities.  The plaintiff was born in December 1989.  At the current time, he is 34 years old.  When Dr Salaria was providing his opinion, he was 33 years old.  That is not the sort of age when one would expect to find previously a great deal of degenerative change in a joint such as a knee.  Equally, the plaintiff's employment history cannot be confirmed by any objective evidence.

46. For example, the report of Mr Sebastian Bass of 20 September 2023, which is Exhibit 3, provides this precis of the plaintiff's work, which I have laid out in table form below:

2001‑2007	Bellpaw Station	Livestock farm worker
2008‑2010	Toll IPEC (Western Australia)	Freight handler
2011‑2012	Bellpaw Station (NSW)	Livestock farm worker
2012‑2013	Electrolux	Product assembler
2013‑2014	StarTrack Express	Delivery driver
2014‑2014	Various (Western Australia)	Car detailer
2014‑2017	A fishing trawler	Deckhand
2014‑2017	Gem Geophysics	Mapping assistant (casual)
2017‑2019	Roy Hill Mine	Operator
2019‑2020	BHP\Mount Keith Mine	Operator
2020‑2020	Various	Operator
2020‑2021	Infrabuild (NSW)	Forklift driver
2021‑2021	Ravensworth Colliery	Operator
2022‑2023	Brunel [the defendant]	Operator

47. The work that the plaintiff did as a livestock farm work was at a piggery near Moulamein, a town near Deniliquin in southern New South Wales.  The worker as a product assembler at Electrolux was "building fridges".  As a delivery driver with StarTrack Express, the plaintiff said that he drove a medium‑rigid truck for approximately two years.  The work as a deckhand was seasonal work on a scallop trawler and when not working on the scallop trawler, the plaintiff was doing the work for Gem Geophysics as a casual mapping assistant.  The plaintiff denied any employment injury to his knee.  Again, I only have his word for that.  However, he did admit to playing AFL. 

Dr Daniel Posel (1)

48. Dr Posel has this history of the plaintiff's football activities:

"Byron Hall played AFL as a position of ruckman (where he described himself as being a good jumper) and centre‑half forward, between the ages of 18‑19 years, and again between the ages of 25‑27 years.  He stated he ended his AFL career as his team got to the grand final, but he was dropped from the team in view of a disagreement with his coach.”

When he was cross‑examined about that, the complainant disagreed that he was a "good jumper".  He called himself a "great jumper".  He did admit that at times when he was playing AFL, he would have some niggles in his knees, but denied any major injury. 

49. His other sporting activities were social lawn bowls and an occasional game of golf and swimming, until the age of 17 at a representative level.  Swimming does not put any stress on the knees, and from my understanding of it, neither social lawn bowls nor an occasional game of golf would cause any pathology in the knees.  The thing that immediately stands out is that the plaintiff has multiple pathologies in his right knee and a lot of them appear to have been acquired over time.  It is degenerative.  As I said towards the commencement of these reasons, the real issue for my determination is what actually happened on 14 February 2023. 

50. The history recorded by Dr Posel, when he examined the plaintiff on 10 May 2023, is this:

"Byron Hall returned to work following his left ankle injury on 14 February 2023.  He stated he had been off work for the proceeding eight days, four of which were rostered days off, and four were sick leave.  Byron Hall was living in Newcastle at that time.  When at work, he stayed at Boggabri Camp, attached to the mine.  Byron Hall reports driving up from Newcastle to Whitehaven Coal on 13 February 2023.

On 14 February 2023, Byron Hall's shift commenced at 6.30am.  He stated there were no questions asked regarding his recent left ankle injury, and he stated he was not requested to undertake a functional assessment prior to a return to work.  He stated he signed in; he made coffee and accompanied his mates into the room for induction and toolbox meeting.  Subsequently, he went off to the ROM.  He was dropped off in the Ute.  Byron Hall reports being allocated to the 812 loader.  He reports walking around the loader, performing a pre‑start check.  He reports the ground being uneven.

Byron Hall stated, at 7.20am, because of the uneven ground, he placed his right foot in a divot, and as a result, he leaned to the right and reports feeling crepitus in the right knee.  This was accompanied by a sharp pain on a scale of 8/10.  He did not fall to the ground.  He does not report pivoting on the right knee.  He stated the knee was rather sore initially, and he tried to get back his movements in the knee.  He stated he hobbled into the loader and continued his pre‑start procedure.  He did not contact the [Open Cut Examiner].  He stated that in the loader, he did not require to use his right leg.

At 1100 hours, Byron Hall was scheduled to change vehicles, and they are to operate the Komatsu 1200 loader.  Byron Hall stated that [Leo], his supervisor, saw him hobbling, and according to Byron Hall, he was then advised to go to the office.  He stated that his gait, at that time, was a 'bad hobble'.  According to the Whitehaven Group first aid treatment record, he was reviewed at 11.54 on 14, 2023..."

Dr Posel goes on to record matters which I have already canvassed.

51. The plaintiff told Dr Posel that late in the afternoon of 14 February 2023, he was provided with crutches by a nurse which enabled him to "hobble" back to his room in the Boggabri camp. Film exposed of the plaintiff, albeit briefly, at about 6.26am on the morning of 15 February 2023 when the plaintiff was entering the White House is reported by Dr Posel to show the plaintiff "walking reasonably well without crutches".  That it shows the plaintiff walking without crutches is correct.  Furthermore, although the plaintiff is seen but briefly on the film taken on 14 February 2023, it does show him walking in much the same fashion as he did on the morning of 14 February 2023 when he first entered the white House.

52. As to the film taken on the morning of 14 February 2023 at the White House, Dr Posel expressed the view that it appears to show the plaintiff having a mild right leg limp.  I have viewed the film, and I find it impossible to determine whether there was any mild right leg limp. However, the plaintiff was wearing protective clothing, including trousers, which obscured any view of his leg, and he was carrying what appeared to me to be a heavy backpack, which was hanging on the right side of the back, rather than in the middle of the back, and on top of the backpack was the plaintiff's safety helmet.  The safety helmet would appear to have had added little weight to the backpack, but the backpack itself appeared to me to be heavy.

53. As a tribunal of fact, I find it impossible to say whether the plaintiff had a mild right leg limp when going to work on 14 February 2023. However, orthopaedic surgeons are people who are trained to observe the gait of a patient, and I can have some confidence in what Dr Posel says about what he perceived he saw in the film.  I can give it some weight, but in light of what the plaintiff said, I cannot say that it is a damning comment on the plaintiff's gait prior to the event now in question.

51. The tearing of the anterior cruciate ligament is often known to occur on a football field.  In saying that, I am referring to all codes of football, including rugby, rugby league, soccer, and AFL.  It is common amongst professional footballers.  It is common amongst non‑professional football players.  It is common in young people, in adolescents, in teenagers, and in people in their 20s, as well as people who are older.  The rupturing of an anterior cruciate ligament usually results in the fairly rapid onset of an effusion, which may or may not involve blood.  If there be blood in the effusion, it is known as a hemarthrosis, which merely means, from the Greek roots, blood in the joint, and usually that is proved by an attempt to aspirate the effusion, to withdraw from the knee joint the fluid by inserting a syringe and trying to withdraw the aspirate, which may show that it includes blood.

52. Usually, rupture of an anterior cruciate ligament will cause, within a matter of hours, an inability to walk, or often lead to immobilisation in bed, and sometimes in hospital.  Nothing of the sort happened in this case.  As I have sought to point out, the only immobilisation of the plaintiff occurred after the shorts episode at home on or about 11 March 2023, almost a month later.  The MRI scans clearly show major pathology, most of which pre‑existed the event.

53. As Dr Posel pointed out on page 2 of his primary report of 12 May 2023, following upon his examination of the plaintiff on 10 May 2023, this:

"15 weeks ago, Byron Hall reported rolling his left ankle at home.  He had four days off work on sick leave.  According to Byron Hall, it was not suggested that he undergo a functional assessment prior to return to work, and within an hour of his return to work, he now reports an acute injury to his right knee.  Byron Hall denies any previous problems with the right knee, notwithstanding:  the MRI scan of the right knee performed 24 February 2023, at ten days post injury does not identify any acute pathology.  (Please refer to the addendum of the MRI scan report of 24 February 2023).  The second right knee MRI scan performed at 10 weeks post alleged injury also reveals no acute injury.  (Please refer to the addendum of the MRI scan report of 23 April 2023).

At present, Byron Hall is living with his brother in Orange and was driven to today's appointment by his mother as Byron Hall stated his present right knee discomfort would not permit him driving from Orange to Newcastle, a distance of 365 kilometres.  Notwithstanding, Byron Hall drove himself from Newcastle to Orange in mid‑March 2023, soon after the second reported left knee injury, inferred at home."

57. I note, however, that when examined by Mr Bass on or about 20 September 2023, the plaintiff told Mr Bass that after he "got in a blue" with his housemates, his mother and brother drove from Orange to collect him and take him back to Orange from Newcastle.  The question, of course, is if that occurred, who drove the plaintiff's Camry back from Newcastle to Orange.  Was it his brother, or was it his mother, and with whom did he travel?  However, that is not the history given to Dr Posel.  Furthermore, it must have been the plaintiff himself who drove himself from Boggabri to Newcastle after he completed his roster at the Maules Creek mine on or about 20 March 2023.

58. Of greater moment was the inconsistency between the description of how the plaintiff was injured obtained by Dr Posel to the generalised descriptions provided to or quoted by Dr Ashton and Dr Salaria.  The plaintiff, with great respect to him, is not the clearest of historians.  An event such as that which occurred to him on 14 February 2023 can happen very quickly, and when things happen quickly, one can fail to perceive the actual mechanism of what occurred.  For example, according to the history obtained by Dr Posel, the plaintiff leaned to his right but did not pivot on his right knee; that is there was no twisting of the knee joint.  The plaintiff, to me, referred to leaning to the right, but with the weight of his body falling forward, an unlikely mechanism for injuring the anterior cruciate ligament.

59. Commencing on page 6 of his report, Dr Posel said this:

"In his original letter of 11 April 2023, Dr Ashton stated that Byron Hall had advised him he was 'walking on uneven, slippery coal, checking the machine when his leg became caught in coal, causing him to fall, twisting the knee, suffering a pivot shift type injury'.  Today, Byron Hall stated that he did not fall to the ground; he merely leaned to the right.  He did not pivot nor twist on the right leg.  Based upon such, with respect, I cannot agree that Dr Ashton's comment, 'The reported mechanism would be consistent with the injury and the MRI findings.'

I do, however, agree with Dr Ashton that the MRI scan findings are in keeping with the reported mechanism of injury as described by Byron Hall to me today.  With merely leaning to the right, and no pivoting nor twisting action, no fall to the ground, there has been no acute injury to the right knee, and this has been demonstrated on the serial MRI scans.

Today, I asked Byron Hall to go over in detail the mechanism of injury, and although his worker's injury claim form reports twisting of the right knee, today he stated he merely leaned to the right and felt crepitus in the knee.  He did not describe a twisting/pivoting injury to the right knee, and he did not document a fall to the ground."

60. That, of course, takes one back to the MRI scans.  Of the MRI scan of 24 February 2023, Dr Posel said this:

"A right knee MRI scan was performed on 24 February 2023 at the request of Dr Robert McCartney in Hamilton, Queensland.  The clinical history he gave was 'hyperextension injury, ligament or internal derangement?'  This MRI scan was reported as identifying ACL rupture, tears of both medial and lateral menisci, a minor degree of arthropathy, and hemarthrosis.

I reviewed this MRI scan online and, as the reporting radiologist is at present on annual leave, I requested Dr Ken Thong, a senior musculoskeletal radiologist, review this MRI scan.  Dr Thong agrees (as per the addendum performed 11 May 2023) that the right knee has a chronic ACL deficiency.  There is no evidence of a pivot shift bone bruise to indicate an acute injury.  The meniscal tears are also pre‑existing as there is also no evidence of associated focal bone bruising to suggest an acute injury here.  There is a joint effusion with chronic synovitis, but, with respect, there is no suggestion of an acute hemarthrosis."

Dr Robert McCartney

61. In his report, Dr McCartney quotes the MRI review made by Dr Ken Thong on 11 May 2023.  Dr McCartney sums it up in this fashion:

"Appears to have a chronic ACL deficient knee.  No evidence of bone brush to indicate acute injury.  The meniscal tears are likely to be pre‑existing as there is no evidence of focal bone bruising to indicate that this is an acute meniscal injury.  There is joint effusion with some synovitis present."

62. What has not been explained to me is how one can assess radiologically whether an effusion is one which includes blood or not; that is, how accurately can an MRI scan differentiate between an effusion which does not include blood, and an effusion which does include blood.  Here, although, the MRI scan of 24 February 2023 refers to a hemarthrosis,  Dr Fung has expressed the view that there is no suggestion of any acute hemarthrosis.  Acute would mean a recent hemarthrosis.

63. I can accept that something happened to the plaintiff's right knee sometime between 7am and 7.20am on the morning of 14 February 2023.  I cannot be satisfied on the balance of probabilities that in that event the plaintiff ruptured his anterior cruciate ligament.  I cannot find that any particular piece of pathology was caused by that event, which on the face of it appears to have been relatively minor.  It is accepted by Dr Fung, for example, that there was a chronic ACL deficiency, meaning that the anterior cruciate ligament had parted or ruptured, or was otherwise broken for some time prior to the event on 14 February 2023.  It appears also that the tears of the menisci were also long well established.  It is difficult to see how the chondral changes noted in the MRI scan taken on 20 April 2023 could possibly relate to an event that had only happened recently, that is on 14 February 2023, two months earlier.  They appear to be degenerative changes of long standing.

64. Things do point to the proposition that the major event on the plaintiff's right knee happened on or about 11 March 2023, with the shorts episode at home, which clearly caused major disability and inability to ambulate for three days and being bedridden for those three days.  Such is the opinion of Dr Posel, as I understand it, and is also the opinion of Dr McCartney.  In his opinion, he made these observations:

"ACL injuries commonly occur in young individuals participating in a sport that requires rapid movement and directional changes, e.g.  Football, rugby, or tennis.  Females are more prone to ACL injuries than men; however, the cause of this is not fully understood.

ACL injuries can be divided into non‑contact and contact causes, with 60‑80% of ACL damage occurring because of non‑contact forces.  Non‑contact injuries occur when an individual has a sudden change in direction at speed, decelerating from running with or without changing direction or jumping and landing.  These movements cause hyperextension and twisting forces to the ACL, resulting in ligament sprains and tears.  Where the mechanism is considered less traumatic, it suggests a previous injury or weakness to the ligament.

Clinical symptoms of ACL injuries include pain, restricted mobility, and swelling."

65. Dr McCartney went on to express this view:

"This 38‑year‑old employee reported twisting his right knee after stepping in a hole at work.  An MRI post incident has reported a ruptured ACL with hemarthrosis, medial and lateral meniscal tears, and a likely MCL sprain.

The mechanism reported is unlikely to cause an ACL rupture.  The mechanism of twisting on a weight loaded knee can cause a force through a medial meniscus, and if there is pre-existing degenerative changes, the meniscus could 'tear'.

However, minimal force is applied as he was walking at the time of the injury.  Therefore, in my opinion the reported injury exacerbated a known degenerative meniscal condition of the worker's knee.

With the respect to the ACL rupture reported on the MRI, the mechanism reported, again in my opinion, is not a significant enough force to cause a ruptured ligament.  Non‑contact ACL ruptures occur when an individual changes direction or decelerates from speed or jumping and landing.  The mechanism described, therefore, would be unlikely to cause enough force to cause the degree of injury to the ACL seen on the MRI Less traumatic mechanisms suggest there is a previous injury or weakness to the ligament.

The MRI review on 11/5/23 showed no suggestion of an acute injury to the ACL or the meniscus which is consistent with the low impact mechanism and the likely diagnosis of a minor exacerbation to pre-existing knee degeneration and injuries.

After viewing the video footage of the employee, he is seen to walk with an antalgic gait both prior to and after the reported injury.  Antalgic gaits are adopted when an individual has pain in their lower limb.  Therefore, from the information provided, in my opinion, the employee had a known injury prior to the reported incident.

In my opinion, the mechanism reported is unlikely to have caused significant force to cause a ruptured ACL and acute meniscal tears, and therefore has caused exacerbations of degenerative or known injuries of his right knee."

66. Dr McCartney was then asked a number of specific questions.  The questions and answers are these:

“1. Is it possible for the worker to have sustained the degree of pathology detected on MRI given the relatively innocuous mechanism of injury?

It is very unlikely.

From the information provided, the worker states he stepped into a hole, felt off balance, and twisted his knee. This reported mechanism occurred whilst he was walking. This mechanism of twisting a weight-loaded knee can cause a medial meniscal tear; however, minimal force is applied as he was walking at the time of injury. Therefore, the meniscal tears reported on MRI are likely to be degenerative. Therefore, the mechanism described, on the balance of probabilities, exacerbated a known degenerative meniscal condition of the worker's knee.

With respect to the ACL rupture reported on the MRI, the mechanism reported, again on the balance of probabilities, is not a significant force to cause a rupture. Non-contact ACL ruptures occur when an individual changes direction or decelerates from speed or jumping and landing. The mechanism described, therefore, would be unlikely to cause enough force to cause the degree of injury to the ACL seen on the MRI. Less traumatic mechanisms suggest there is previous injury or weakness to the ligament.

Therefore, the mechanism described would not be of significant force to cause acute meniscal tears or rupture an ACL. This injury described likely resulted in exacerbations of degenerative and existing conditions.

2. It is possible that a “likely mild MCL sprain” may be a misdiagnosis given the degree of patient motion contributing to significant radiological artefact?

Collateral ligaments are required for the mechanical stability of the knee joint. Collateral ligament injuries are usually due to a force pushing the knee sideways (medial or laterally) from direct contact/blunt trauma. A medial collateral ligament sprain usually results from direct valgus force to the knee.

From the information provided, this type of force did not occur. However, I would be unable to comment if this was a misdiagnosis, as an existing strain could be present before the worker's MRI.

3. Is it possible that the ACL rupture could be a pre-existing injury associated with the degenerative meniscal tears given that these injuries generally occur concomitantly?

Yes, it is possible this could be an existing injury.

This possibility is due to the mechanism reported not being consistent with a typical mechanism of injury for an ACL rupture; it is reported that 50% of ACL ruptures are associated with a meniscal injury.

4. With consideration to the timing of the injury, antalgic gait pattern show in CCV footage prior to commencing on 14/02/23 and his own report of a significant injury at home on his rostered days off, is it possible that the worker has presented to work with pre-existing damage to his right knee?

On reviewing the footage, the worker is seen to be walking with an antalgic gait, favouring his left side before and after the reported injury.

This suggests an injury was sustained prior to his reported mechanism on 14/2/2023. However, it does not provide enough information to specify the injury causing the antalgic gait.”

67. Again, the opinion of Dr McCartney supports the same approach adopted by Dr Posel and Dr Posel's peers.  Further, as I did discuss in considering Dr Posel's report, I have to defer to a specialist such as Dr McCartney as to what the film shows.  Again, an occupational physician like an orthopaedic surgeon ought to be trained to observe things such as what is shown on a film.  At most, all I can accept is that on the morning of 14 February 2023, the plaintiff aggravated some pre-existing pathologies ‑ and I use the plural advisedly ‑ in his right knee, which caused some exacerbation of a condition.  The question is does that persist or not?

Dr Daniel Posel (2)

68. In a report bearing the date 13 May 2023, Dr Posel commented on the question of incapacity.  In that report, he said this:

"Q.  Do you consider that the worker is fit to return to [his] pre‑injury duties?  If not, what restrictions would you place on [him] including specific duties and hours?

A.  Yes.

Q.  If you consider that the worker suffers from an incapacity, does this arise as a result of injuries sustained during the course of [his] employment?

A.  Byron Hall appears to have coped for some years performing all of his usual duties with an ACL deficient right knee and with an underlying meniscal tears.  He has a full range of motion of the knee, and he gives no history of instability of the knee.  If there is an incapacity, such is minimal, but any incapacity does not relate to his employment at the Boggabri mine."

69. In answer to a further question, the doctor said that the plaintiff could return to his preinjury duties "as soon as practical".  That, of course, must be the opinion of the doctor as at the time that he assessed the plaintiff on 10 May 2023.  Based on that opinion, I accept that the aggravation or exacerbation of the plaintiff's pre-existing pathology in his right knee ceased by 10 May 2023.  The question then becomes what is the plaintiff's entitlement to weekly payments?

Entitlement to Weekly Payments

70. Everyone says that the plaintiff is fit for some form of light work.  No one limited the number of hours in which the plaintiff could perform light duties until the plaintiff was given a certificate on the stationary of Centrelink by Dr Ben Ryall of the Orange Aboriginal Medical Service on 8 March 2024.  That gave a diagnosis of right anterior cruciate ligament rupture, and it noted the plaintiff was awaiting surgery "next week", and that the plaintiff would then require a period of rehabilitation post‑surgery.  Of course, surgery at that time did not proceed because the defendant had denied liability.  However, the plaintiff was then placed on Dr Ashton's public hospital list, and the surgery might be practiced sometime before the end of the current year.

71. In the certificate, this question was answered in the negative.  "Can this patient do any work, study, or participate in activities of eight or more hours per week?"  That means that the plaintiff was, in Dr Ryall's opinion, unable to work for more than eight hours per week, otherwise every certificate issued to the plaintiff indicated that he was fit for restricted work for the usual number of hours that he would work.

72. It is agreed that, but for injury, the plaintiff would have been able to earn at all material times $1,681.50 per week.  The question then becomes what could he earn in some suitable employment.  There are a number of jobs proposed by Mr Sebastian Bass.  Mr Bass said this:

"Mr Hall stated that he is currently certified as being unfit for work and that he requires knee reconstruction surgery.  However, the 14 April 2023 report of Dr Ashton, orthopaedic surgeon, opines that Mr Hall is fit for light sedentary duties, provided he's able to avoid unstable and uneven, slippery surfaces, kneeling, squatting, or heavy work.  A range of driver and operator jobs meet these work restrictions."

73. Mr Bass goes on to list seven jobs which he thought the plaintiff could do, bearing in mind those restrictions.  One of them was a job as a product assembler.  Mr Bass listed that under the heading:

"Sedentary jobs which meet the above work restrictions include entry‑level Process Worker roles which entail working at a bench and call centre roles:

Product Assemblers

Put together components and subassemblies that go into the production of metal products, electrical or electronic equipment, jewellery and precious metal articles, and joinery products.

Tasks include:

‑ Locating, positioning, and securing components on work benches

‑ Punching and drilling marking holes in parts and assembled products

‑ Assembling and securing components in sequence

‑ Assembling parts by nailing, screwing, gluing and doweling, riveting, crimping, soldering, and spot‑welding components

‑ Fitting hardware items such as hinges, catches and knobs to parts

‑ Attaching and fastening jewellery and jewellery parts to fabricate bracelets, necklaces, broches, and earrings

‑ Deburring and finishing items using files, grind wheels, and emery paper

‑ May manually wind light electrical field coils"

74. The average weekly earnings for a male product assembler were, at the relevant time, $1,100.20.  The difference between the plaintiff's probable weekly earnings, if he had remained working for the defendant, and what he could earn as a product assembler, is $581.30.  I believe that to be the appropriate sum to award the plaintiff between 6 March 2023 and 10 May 2023, pursuant to s 11(1) of the Worker's Compensation Act 1926, as its operation is preserved for those who work in or about a coal mine pursuant to the Worker's Compensation Act 1987 Schedule 6 Part 18.

75. As Dr Posel points out, the plaintiff was able to drive at times, long distances, but now he says that he might be able to drive the 4.8 kilometres between his abode at the Ophir Road in Orange into town where he undertakes work in the gymnasium for one or two hours each weekday.  The fact that he can work out in a gym for five or ten hours per week is quite inconsistent with being unable to do any work at all, and his ability to drive such restricted distances is inconsistent with what he had been doing up until his move back to Orange to live with his mother and brother.

Judgment

76. For those reasons, I make an award for the plaintiff for $581.30 per week from 7 March 2023 to 10 May 2023.  I should state that the reason for commencing the award on 7 March 2023 is because Exhibit E, tendered in the plaintiff's case, shows that up until 6 March 2023, the plaintiff had not suffered any loss of time from work.  I order the defendant to pay the plaintiff's expenses under s 60 in respect of the period 14 February 2023 to 10 May 2023.

77. I order the defendant to pay the plaintiff's costs.

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Decision last updated: 13 August 2024