Hector v Thiess Pty Limited - [2020] NSWDC 228

District Court

New South Wales

Medium Neutral Citation: Hector v Thiess Pty Limited and others [2020] NSWDC 228
Hearing dates: 6-7 May 2020
Date of orders: 07 May 2020
Decision date: 07 May 2020
Before: Neilson DCJ
Decision:
See [80] to [85]

Catchwords:
Coal Miner’s Workers Compensation – Claims for weekly payments and lump sums – P employed by 1D as a technician and later supervisor of a Coal Handling Processing Plant (CHPP) (formerly known as a “washery”) at Mt Owen Mine - P later employed by 2D and 3D as an electrical technician and later electrical supervisor of CHPP at Liddell - Consideration of such duties, compared to underground coal mining and work in an open cut mine.

P developed osteoarthritis/degenerative disease in neck, shoulders, thoracic spine, hips and knees - Conflicting medical evidence on causation – Internal inconsistencies in P’s medical evidence - Court not assisted by recitation by experts of formulae - Need to explain why conditions were work related.
Lump sum compensation – Deductible proportion – WCA 1987 s68A as enacted by Act No 89 of 1995 applied to coal miners, not s68A and s168B enacted by Act No 120 of 1996 - Deductible proportion only applies to impairment of the back, neck and pelvis - Rules in Rodios v Trefle still applies to all other losses – at [77].
Legislation Cited: Workers Compensation Act 1987
Workers Compensation (General) Regulation 1995
WorkCover Legislation Amendment Act 1995 No. 89
WorkCover Legislation Amendment Act 1996 No. 120
Cases Cited: Radios v Trefle [1937] WCR
285
Category: Principal judgment
Parties: (Plaintiff) Andrew Clifton Hector
(1st Defendant) Thiess Pty Ltd
(2nd Defendant) Liddell Coal Preparation Plant Pty Limited
(3rd Defendant) Liddell Coal Operations Pty Limited
Representation:
Counsel:
(Plaintiff) P. O’Rourke
(Defendant) S. McMahon
Solicitors:
(Plaintiff) Whitelaw McDonald
(Defendant) Sparke Helmore Lawyers

File Number(s): RJ00088/18
Publication restriction: Nil.

Judgment

HIS HONOUR: The plaintiff, Mr Andrew Clifton Hector, claims weekly payments of compensation from 15 September 2017 to date and continuing. He also claims lump sum compensation under s 66 for 30% impairment of his neck, 50% permanent loss of efficient use of his right leg at or above the knee, 40% permanent loss of efficient use of his left leg at or above the knee, 30% permanent loss of efficient use of his right arm at or above the elbow, 30% permanent loss of efficient use of his left arm at or above the elbow, and a consequential lump sum for pain and suffering, anxiety and distress resulting from that impairment and those losses pursuant to s 67. He also claims specific expenses under s 60, but, as the case has been presented and argued, only general orders in respect of certain areas of treatment are sought. The statement of claim also claims “costs and disbursements”, which is not a claim for compensation and ought not be pleaded. There is also a claim for interest, but as I understand it no interest is payable in respect of workers compensation payments at the current time.
The plaintiff brings his claim against three defendants. The first defendant is Thiess Pty Ltd, by whom the plaintiff was employed at the Mount Owen mine near Ravensworth in the upper Hunter Valley between 21 June 2004 and 23 October 2009. He also brings his claim against Liddell Coal Preparation Plant Pty Limited and Liddell Coal Operations Pty Limited, but that appears to be merely a change of employer, rather than a change of workplace or working conditions. By each of those two companies, the plaintiff was employed at the Liddell Coal Operations coal handling processing plant. He commenced that employment on 5 October 2010, and his services were terminated with effect from 15 September 2017.
The plaintiff has not worked since. The claim ought not commence on 15 October 2017, but on a date thereafter. When the plaintiff’s services were terminated, he was paid one week’s salary in lieu of notice. 15 September 2017 was a Friday, and it appears to me that the claim ought properly commence on the following Monday 18 September 2017.
The plaintiff has had a very varied and interesting working career. The plaintiff was born in December 1965. He is currently 54 years old. His wife has been dependent upon him at all material times. His younger son, Blake, was dependent upon him until 7 September 2018 when he found full-time work. The plaintiff’s elder son, Liam, was at all material times a student at Newcastle University undertaking a commerce degree. He turned 21 on 16 September 2019, and if he were dependent the dependency must cease as at that date. However, the evidence adduced concerning his dependency was unsatisfactory, in that Liam was working part-time and casually and perhaps during university vacations. Mr Hector himself was unsure as to how much he was earning. It is appropriate that if the plaintiff be successful in his claim for weekly payments of compensation, I grant him liberty to apply to establish whether Liam was mainly dependent upon him for support between 18 September 2017 and 16 September 2019.

Work history

The plaintiff attended Wallsend High School and obtained the Higher School Certificate in 1981. In February 1982, he commenced work as an apprentice electrician with James Watt at Cardiff. He completed that apprenticeship and worked on with James Watt as an electrician until May 1987. Between May 1987 and August 1987, the plaintiff worked for Hunterlec at Islington as an electrician, carrying out electrical installations. In August 1987, he returned to working for James Watt at Cardiff, which was renamed ABB James Watt. He was employed as a leading hand electrician. In his curriculum vitae, which is exhibit 5, the plaintiff said that his work involved supervising electrical and mechanical tradesmen on construction and major maintenance projects in the mining, steel, aluminium, and power generation industries. He was also involved in the commissioning of “major projects”. He was required to liaise with his employer’s clients and engineering staff at worksites. He was also carrying out electrical and instrumentation installations and upgrades.
In November 1994, the plaintiff found employment in the Northern Territory. He found that employment with the Groote Eylandt Mining Company, on that island of the northern coast off the mainland. His work there, as described in his curriculum vitae, was as a leading hand electrician involved with, inter alia, instrumentation. The Groote Eylandt Mining Company mined manganese. The plaintiff describes his work there thus:

“●    Carrying out and supervising electrical, instrumentation and control
systems maintenance of manganese mining operation, including crushing plants, dense media plants, stockpiling equipment, truck loading and unloading facilities, ship loader, power station, high voltage distribution system and airport.
●    Planning and scheduling plant maintenance.
●    Carrying out power station operation duties.
●    Coordinating power station control upgrade work.
●    Carrying out electrical, instrumentation and control system fault diagnosis and repair.
●    PLC programming.
●    Calibrating process instrumentation.
●    Control loop tuning.
●    Issuing high voltage access permits.
●    High voltage switching.
●    Writing isolation procedures.”

Whilst working at Groote Eyelandt, the plaintiff developed some problems in his right knee, to which I shall return after going through the plaintiff’s work history.

From the Northern Territory, the plaintiff moved to Western Australia, where he found work for Hamersley Iron at Mount Tom Price. He had two roles there, the first as an electrical maintainer, and the second as a relief maintenance supervisor. His curriculum vitae describes his work at Tom Price extensively. The first two areas should be noted. The first area concerned carrying out duties as a maintenance supervisor. The plaintiff listed these roles:

“●    Supervising multiskilled workgroups carrying out electrical,
instrumentation and mechanical maintenance of large scale iron ore processing plants, conveying systems, stackers, reclaimers and rail loading facilities.
●    Coordinating labour and material requirements for weekly
maintenance plan and major plant shutdowns.
●    Analysing condition monitoring reports and scheduling appropriate maintenance activities.
●    Use of SAP for maintenance management, supply and personnel management functions.”

The next major role described is the plaintiff’s work as the electrical maintenance supervisor:

“●    Assuming responsibilities of statutory electrical engineer for process plant areas of operations.
●    Supervising a team of electrical maintainers, apprentices and contractors.
●    Coordinating, prioritising and scheduling planned and unplanned electrical maintenance tasks.
●    Investigating and reporting high risk electrical incidents.
●    Supervising electrical plant upgrades and electrical installation work.
●    Supervising recommissioning of plant after major control systems and electrical upgrades.”

Other activities required of him at Tom Price included issuing permits, writing and reviewing isolation procedures, preparing training and assessment documentation and maintaining electrical drawings. This is important to note, because it shows the plaintiff having managerial skills and being heavily involved in supervision of others who carried out the more mundane tasks of an electrician.

In 2001, the plaintiff’s father fell ill and he found it necessary to return to New South Wales. Between August 2001 and April 2003, he worked at Port Kembla for Brambles Industrial Services as the controller of a Pulverised Coal Injection Plant. Obviously, coal was taken from the Southern mines to Port Kembla, and crushed there to be used in the steelworks. Without itemising everything stated in the plaintiff’s curriculum vitae, his major roles there were performing control room and field operational duties for the plant, planning and supervising the maintenance of the pulverised coal injection plant, carrying out plant maintenance duties, identifying and implementing cost saving initiatives and writing procedures concerning the maintenance and operation of the plant, and conducting plant inductions.
In 2003, the plaintiff came to the Hunter Valley. He found work with i.Power Solutions at Thornton. He was the control systems engineer. Essentially, his employer was providing services to the Mt Arthur Coal Coal Handling Processing Plant (CHPP). The plaintiff lists his work there as being:

“●    Programming PLC software for Mt Arthur Coal CHPP.
●    Citetc SCADA system modification for Mt Arthur Coal CHPP.
●    Commissioning Mt Arthur Coal CHPP MCCs, PLC controls and process instrumentation.
●    Control room operations of Mt Arthur Coal CHPP during commissioning.
●    Training Mt Arthur Coal personnel in dense medium plant operations using Citetc control interface.
●    Training Mt Arthur Coal electrical personnel in PLC interrogation to aid in fault diagnosis.
●    Modifying PLC programs and Citetc interface to increase plant efficiency and simplify operation.
●    PID control loop tuning.
●    Providing engineering support to Mt Arthur Coal personnel in the diagnosis and repair of control, process, electrical and instrumentation faults.
●    Providing after hours on call control systems support for CHPP and train loading facility.”

Again, this indicates a very responsible role in the setting up and commissioning of the CHPP at the Mt Arthur Coal mine. It also indicates the plaintiff’s ability as a trainer of staff to operate that facility.

I have omitted to point out that between the work for Brambles Industrial Services at Port Kembla and commencing with i.Power Solutions at Thornton, the plaintiff worked for a short period of time between April 2003 and July 2003 with JA Martin Electrical at Mt Thorley carrying out electrical maintenance on client’s sites, carrying out electrical upgrades and installation work, and electrical and control fault diagnosis and repair. It is likely that that was contracting work to the coalmining industry.

Work with the first defendant

As I have earlier mentioned, the plaintiff commenced working for Thiess Pty Ltd, the first defendant, on 21 June 2004. Up until July 2006, the plaintiff’s role was as a CHPP technician at his employer’s Mount Owen mine. In his curriculum vitae, the plaintiff described his duties there thus:

“●    CHPP and Domestic Coal Crushing Plant control room and field
operational duties.
●    Fault diagnosis and repair of high voltage electrics, hardwired controls, PLC based control systems and process instrumentation.
●    PID control loop tuning.
●    PLC program modifications.
●    Issuing high voltage access permits.
●    High voltage switching.
●    Carrying out train loading operations, including control room operations, bulldozer operations and reporting.”

Considerable time was spent in chief describing the physical aspects of the plaintiff’s work at Mount Owen mine. When I refer to considerable amount of time, I am referring to a very lengthy period of time. The plaintiff was working on a four panel roster. Each shift was of twelve and a half hours. The half hour was a changeover period. During one week, the plaintiff would work for three days per week, and during the second week he would work for four days per week. He tried to do overtime, and would often do one overtime shift per week. An overtime shift was a further twelve and a half hours.
The plaintiff described wearing a heavy belt on which he carried tools, and also carrying a tool box on a sling over either of his shoulders, that weighed some 25 kilograms. The CHPP, which was once upon a time called a washery, was about nine storeys high. However, in structure there were only six levels. Access between levels was by the use of stairs. Each level was about 120 metres in length. According to the plaintiff, the control room was two-thirds of the way up the structure, which probably indicates that it was on level 4.
I accept the plaintiff’s work frequently involved his moving from level to level and along levels, walking up stairs made essentially of metal chequer plate and along walkways made essentially of metal chequer plate. The plaintiff described nine conveyors feeding into the plant, that is bringing coal from the mine to the plant, and four conveyors leaving the plant, some carrying coal and some carrying dross, if that be correct appellation for stone, mud and the like, that which was dug up in the mine that was not coal, which had to be separated from the coal before it could be loaded. The plaintiff told me that the conveyors averaged about 200 metres in length. The plaintiff was required to walk along the conveyors to gain access to them if there be, for example, any breakdown or a need to inspect them. Often there were spillages of coal from the conveyors, and such spillages needed to be cleaned away, either with shovels or by the use of hoses. When carrying out inspections, if the plaintiff came upon a spillage he would often remove the spillage. The plaintiff told me that on each shift he would climb between six and eight times up to the control room, and on three or four occasions each shift he would climb to the top of the structure up all six floors over the nine storey height of the structure.
There was often materials that had to be carried to, for example, a site where repair work needed to be done. The plaintiff also described work which he joined in with others. He often used the word “we” when describing his duties. One of those duties involved carrying drums of oil, which weighed about 20 kilos. He also described doing work on conveyors of a mechanical nature, and cleaning up spillages. A lot of what was described in physical terms was not the work of an electrician, but the work of a general hand in the CHPP. However, I accept the plaintiff did that work from time to time, especially during a breakdown in the plant or a cessation of plant activity when it was necessary to get the plant up and running, when it was a case of “all hands on deck”. However, the plaintiff’s primary duties as outlined in his curriculum vitae must be borne in mind. Much of the physical work that was described in evidence appears to me to be an adjunct to his primary work, and was not the primary work that he did but merely work ancillary to his primary work.
In July 2006, the plaintiff was appointed as a CHPP supervisor at the Mount Owen mine. The plaintiff’s curriculum vitae says this about this work:

“   ●    Supervising CHPP operational crews:
●    Ensuring plant is safely and efficiently operated to achieve customer quality and throughput targets.
●    Compiling and distribution of shift operational and train loading reports.
●    Ensuring all statutory requirements and operational procedures are adhered to.
●    Ensuring that trains were loaded with correct product blend within a scheduled time.
●    Identifying opportunities to increase plant throughput.
●    Carrying out plant modifications to increase plant reliability.
●    Monitoring and optimising magnetite consumption.
●    Ensuring housekeeping standards are maintained.
●    Providing technical support to technicians on process related issues.
●    Planning and supervising maintenance of Mount Owen CHPP including:
●    Planning and scheduling electrical instrumentation and    control systems maintenance.
●    Managing service agreements for electrical, instrumentation and control systems maintenance.
●    Supervising direct employees and contract maintenance personnel carrying out maintenance activities within CHPP.
●    Issuing high voltage access, hot work, working at heights and excavation permits.
●    Maintaining electrical drawings.
●    Analysing maintenance data to ensure maximum plant availability.
●    Interpreting condition monitoring reports.
●    Providing technical support to technicians on complex maintenance issues.
●    Implementing isolation lockout procedures including:
●    Creation of isolation documentation.
●    Writing group isolation procedures.
●    Sourcing and procuring group lockout equipment.
●    Writing procedures including:
●    Isolation procedures.
●    High voltage access procedures.
●    Operational procedures.”

Clearly, that was much more responsible work, managerial work, and work involving the brain as well as the body, much different to the work of a CHPP technician. It must be taken as a credit to the plaintiff’s ability to do his work as a CHPP technician that he was promoted to be the CHPP supervisor.

Whilst I accept that there were activities that involved physical exertion by the plaintiff, including inspections of the plant and climbing the ladders, walking the walkways and walking along the conveyors, the work as a supervisor appears to me to have been less physically taxing than the work of the technician. I do however accept that the plaintiff’s supervisory work probably required him to pitch in during a breakdown of the plant to get everything underway, and physically demonstrating to those beneath him at the CHPP how to perform work which was required of those whom he supervised. However, it was not all hard physical work, as has been submitted on behalf of the plaintiff.

Railway work

In October 2009, the plaintiff started a new job for Pacific National railways as the terminal shift supervisor at Antiene, essentially operating the railway that serviced the Bayswater Power Station. Prior to taking up this job, the plaintiff was asked whether he had any problems with his body when he left his work at the Mount Owen mine. He told me that he had no physical problems when he left that work. The plaintiff told me that his job with Pacific National was essentially a clerical or organisational job. It is also described in the plaintiff’s curriculum vitae. It is thus described:

“●    Supervising terminal operational crews:
●    Ensuring coal unloader and associated conveying systems are safely and efficiently operated to achieve planned throughput targets.
●    Actively managing the performance of train crew.
●    Supervising rolling stock shunting operations.
●    Compiling and distribution of shift operation and train discharge reports.
●    Ensuring all statutory requirements and operational procedures are adhered to.
●    Ensuring trains are provisioned and inspected to be available for departure at the scheduled time.
●    Coordinating maintenance response to coal unloader and conveying systems breakdown situations.
●    Ensuring housekeeping standards are maintained.
●    Monitoring site security systems.
●    Identifying training requirements.
●    Supervising personnel carrying out maintenance on coal unloading system and rolling stock.
●    Coordinating domestic coal mainline rail operations:
●    Ensuring crews are rostered to efficiently operate domestic coal services.
●    Liaising with mines to ensure availability of coal loading facilities to load scheduled rail services.
●    Monitoring and managing train crew fatigue levels and arranging relief crews where necessary.
●    Coordinating paths for domestic coal services with ARTC.
●    Coordinating response to mainline incidents, including drug and alcohol testing and preliminary incident investigations.
●    Coordinating maintenance response to mainline locomotive and wagon failures.”

This clearly was managerial work, and, again, as the plaintiff described it, clerical or organisational work. This is work essentially that could be done from a desk. The plaintiff left that employment because he did not like “railway culture”.

Work with second and third defendants

On 5 October 2010, he found work at the Liddell CHPP. He worked as an electrical technician initially, and on 17 November 2011 he became an electrical shift supervisor. He remained in that role until his services were terminated on 15 September 2017. The plaintiff said that his work at the Liddell CHPP was similar to the work at the Mount Owen CHPP. Again, there was a four panel roster, each shift was twelve and a quarter hours, only a quarter hour being aside for a changeover. Again, he worked three days in one week and four days in the next week. He sought to perform one shift overtime a week, making his first working week a four day week and a second working week a five day week.
The CHPP at Liddell was smaller than the CHPP at Mount Owen. He described Mount Owen as having “three modules”, but Liddell as only having “two modules”. However, the plant layout was similar, the height of the plant was much the same as at Mount Owen, and there were the usual configuration of stairs and walkways and ladders where necessary. It was whilst working as an electrical technician at Liddell that the plaintiff again noticed problems in his right knee.
The date when the plaintiff became the CHPP supervisor, 17 December 2011, can he found in exhibit AA. The plaintiff’s initial salary had a fixed remuneration of $147,000. There was a statutory superannuation allowance of $12,132.61 included in that $147,000 figure. However, exhibit AA also tells me the plaintiff was paid a shift or roster allowance of $28,500 per annum and additional superannuation. There were also available to him short term incentives and a performance pay “top up”, so that potentially the plaintiff had the ability to earn $197,550 per annum. That is not a small salary or income. That indicates the plaintiff’s work as a CHPP supervisor at Liddell was important, as well as being well remunerated. It appears to me to be largely the same sort of work that the plaintiff performed as the supervisor of the CHPP at Mount Owen.
Exhibit BB tells me that the calendar year commencing 1 January 2016, the plaintiff’s base salary had been increased to $164,000, and the plaintiff’s new salary with effect on 1 January 2017 was based on a salary of $167,500. The wages schedule which is in evidence tells me that at all material times since the plaintiff was dismissed by Liddell he would have been earning $4,100 per week. Again, that is hardly a salary paid to somebody employed merely to do physical work. Both the job description and the salary indicate to me that the plaintiff’s work was highly responsible, it involved his taking control of the CHPP and maintaining it, and supervising the staff. I accept that there were physical aspects of the job, but not to the extent that I have been asked to accept by learned counsel for the plaintiff.

Medical Evidence – right knee

I turn now to consider the medical evidence before me. On 11 July 2011, the plaintiff attended upon Dr Muhsin Samy at the Blackalls Park Family Surgery at Blackalls Park. The notes recorded by Dr Samy are these:

“Says right knee pains about 12 months. Says three weeks ago had a big day at work which made it worse. Says 15 years ago had arthroscopy done.”

Dr Samy sent the plaintiff for an X-ray. That X-ray was performed on 12 July 2011. It was reported by Dr Hugh Scotton thus:

“There is no evidence of old or recent bony trauma. Bone structure and density appear normal throughout. Knee joint space is normal in width. No evidence of loose body. However, there is significant swelling in suprapatellar bursa.”

Dr Scotton went on to conclude that the effusion raised the possibility of there being synovitis of the knee joint. The plaintiff returned to see Dr Samy on 18 July 2011, and the plaintiff and Dr Samy discussed the X-ray appearances. The plaintiff told Dr Samy that he wished to see Dr Young, an orthopaedic surgeon. He was then referred by Dr Samy to Dr Johnathon Young, an orthopaedic surgeon.

The plaintiff saw Dr Young on or about 25 July 2011. Dr Young’s history is this:

“Mr Hector has had problems in the right knee for the last 12 months or so. In the last three weeks, the knee has become really sore. The pain is in the medial joint line and is quite swollen. The discomfort is exacerbated by twisting the knee. The knee is swollen but it doesn’t lock.
Mr Hector underwent arthroscopy in Darwin 15 years ago and it sounds as though a chondral lesion was dealt with in his patellofemoral joint. At any rate the surgery fixed the problem at the time.”

The history recorded by Dr Young is completely consistent with the history obtained by Dr Samy, and that is unsurprising since Dr Samy in his referral letter set out the history recorded in his notes. It seems likely that Dr Young based his history on what was stated by Dr Samy in the referral letter.

There are a number of points to note. Firstly, it is clear that the plaintiff told Dr Young that although he had the problem in Darwin some 15 years ago, that problem was corrected by surgery, and the plaintiff did not admit to any ongoing problem thereafter, until problems arose over “the last 12 months or so”. Of course, 12 months from 11 July 2011 places the onset of the symptoms in the right knee when the plaintiff was employed by Pacific National operating the railway leading into the Bayswater Power Station. When that was pointed out to the plaintiff, he admitted that he may have made a mistake. The clear effect of his evidence is that his symptoms came on, not whilst he was working for Pacific National, but when he was working for Liddell Coal. I am prepared to accept the plaintiff in that regard, and accept that the reference to “12 months” should be read down to a reference of about nine months or so. However, the estimate of time is a lengthy one, indicating the plaintiff’s symptoms had been ongoing not for some short period, or for example a period of three or six months, but a longer period of time. It appears likely to me that the plaintiff’s symptoms in the right knee commenced shortly after he started working for Liddell Coal, and that they had been made worse by some activity which cannot be recalled by the plaintiff, and is not recorded by the medical practitioners some three weeks before the plaintiff saw Dr Samy on 11 July 2011.
When examined by Dr Young on 25 July 2011, the doctor found a large effusion of the right knee and a positive swipe test. He found the plaintiff to be exquisitely tender in the medial joint line. Arthroscopy was proposed by Dr Young, and accepted by the plaintiff. The arthroscopy was carried out on 10 August 2011. The report of the arthroscopy by Dr Young is this:

“Under general anaesthesia an EUA was performed. The right knee was stable. Standard arthroscopic portals were made revealing minor wear of the patellofemoral joint mirrored within the trochlea. This was carried through into the medial compartment. There was a medial meniscal tear of the body and posterior horn was excised. The ACL and PCL were intact. The lateral compartment was normal. The knee was lavaged and fragments removed.”

It is clear the doctor found wearing of the patellofemoral joint. He also found a tear of the body of the medial meniscus, and the posterior horn of that structure was excised.

It is convenient at this time to go back to the records produced on subpoena by the Royal Darwin Hospital. Those documents are exhibit 4. The first document in exhibit 4 bears date 26 May 1997. It is a note made by the Orthopaedic Registrar at the Royal Darwin Hospital and addressed to Dr Pozzi, an orthopaedic surgeon at that hospital. The substance of the document is this.

“Andrew Hector is on Steve Baddeley’s waiting list for a scope for patellofemoral arthritis and he lives in Alyangula and we would be grateful if you could review him when you are next at Groote to assess his appropriateness for surgery."

The inference to be drawn is that Steve Baddeley was also an orthopaedic surgeon who diagnosed patellofemoral arthritis and proposed arthroscopy. The plaintiff confirmed that when he was living on Groote Eylandt he was living at Alyangula and it appears that Dr Pozzi was an orthopaedic surgeon whose “rounds” included Groote Eylandt and hence the request by the Orthopaedic Registrar for Dr Pozzi to assess the plaintiff’s appropriateness for surgery. The next document bears date 12 May 1998. It records the plaintiff’s having increasing pain in his right knee, that there was crepitus and that the knee was worse when the plaintiff was sitting. There was a query as whether there was a past history of any injury. The note goes on to comment that the crepitus indicated a problem behind the patella. Arthroscopy was practised on 11 May 1998 at the Royal Darwin Hospital. The diagnosis offered in the handwritten operation record is “chondral ulcer/medial patella plica” I am unable to decipher the first word used in describing the operation but it may be “arthroscopy”. The second word is “debridement”. There is a handwritten diagram at the foot of the document indicating a “ulcer” at about the 3 o’clock position on the back of the patella and a plica between the femoral head and the 1 o’clock position on the back of the patella. Other structures including the medial and lateral meniscus have all been ticked, indicating that there was no abnormality found there. The indication of the base of the femur is also ticked, indicating that there was no abnormality found there. The plica was clearly on the medial side of the knee, as was the area of “ulceration”. A question arises is to what is meant by the word “ulcer”. It appears to me to describe merely some chondral lesion. A medical dictionary tells me that the word “ulcer” means a breach on the surface of the skin or on the surface of the membrane lining any cavity within the body which does not tend to heal quickly. However, most ulcers are in fact abscesses and clearly an abscess was not found because there is no suggestion that antibiotic medication was prescribed. Clearly there was some chondral lesion found at the time of this operation in Darwin on 11 May 1998.
The Royal Darwin Hospital records also give me notes for two outpatient attendances, each by Dr Pozzi. The first was on 21 May 1998 when Dr Pozzi noted this:

“Wound satisfactory. Knee improving. Full range of movement. Lack 10 degrees active extension. …review in four weeks.”

That review was carried out on 18 June 1998, again by Dr Pozzi. The notes are these:

“Still anterior knee pain going down stairs. Full range of movements. Non-tender. Clarke’s test mildly positive. For physiotherapy. Review if problems.”

There was no review. One can accept that there were no problems noted after June 1998. The plaintiff told me that there was no physiotherapy available for him on Groote Eylandt. Clarke’s test is used to test for patellofemoral pain or, alternatively, as it is known, anterior knee pain. It is used to diagnose anterior knee pain when the history indicates that such is the likely pathology. In other words, a positive Clarke’s test indicated that there was some anterior knee pain or patellofemoral pain. Clearly debridement was carried out on the chondral lesion on the back of the patella. One can accept, therefore, that the minor wear of the patellofemoral joint visualised by Dr Young, the arthroscopy on 10 August 2011, probably resulted from that debridement from that operation on 11 May 1998. However, it is clear that in that operation there was no damage to the medial meniscus.

LUNCHEON ADJOURNMENT

In a report of 18 August 2011 Dr Young pointed out that the principal finding at arthroscopy was the tear of the medial meniscus which led to its partial excision. The question arises is what was the cause of the plaintiff’s symptoms that led to his undergoing the arthroscopy? It seems likely to me, therefore probable, that the symptoms the plaintiff was complaining of since shortly after starting work with the second defendant were mediated by the tearing of the medial meniscus. The question is why did it tear? Did it tear because of frank trauma? Did it tear as part of a degenerative process or was there some other cause for it? The plaintiff relies in particular on a statement contained in the report of Dr Neil McGill, a rheumatologist qualified by the defendant, who examined the plaintiff and reported on 23 August 2018. On p 8 of Dr McGill’s report is this statement.

“…the studies are very clear that trauma, including meniscal damage, is an important causative factor in the development of knee osteoarthritis. If the meniscectomy he had in 2010 was related to a specific injury then I would conclude that the injury was relevant to his subsequent right knee progressive osteoarthritis.”

I wholly accept that the surgery practised to the plaintiff’s medial meniscus by Dr Young on 10 August 2011 would have at least accelerated or exacerbated or caused to deteriorate any osteoarthritis in the plaintiff’s left knee. However, there was no “specific injury”, no event of injury either pleaded by the plaintiff in the statement of claim or described by him in his evidence. However, if there was some degenerative process going on the medial meniscus could fray over a period of time and the fraying could lead to complete rupture, which appears radiographically or visually to look like a tear of the meniscus.

However, the only way one can definitely know that there was such tearing leading to rupture is symptoms. The plaintiff’s symptoms commenced shortly after he started working for the second defendant and there was, it would appear, some acute exacerbation, that is major flare-up of symptoms, some three weeks before the plaintiff saw Dr Samy on 11 July 2011. It is quite possible and, I believe, likely that the plaintiff did injure in some fashion his right medial meniscus sometime after starting work for the second defendant and likely that there was a complete separation of the medial meniscus, the tearing, probably three weeks prior to 11 July 2011. I say that because the plaintiff had no symptoms, prior to working for the second defendant, in his right knee other than way back in 1997 and 1998 in the Northern Territory and antecedent to starting work with the second defendant the plaintiff’s work with Pacific National was largely sedentary and the plaintiff’s returning to work at a CHPP probably overexerted himself compared to the way he worked with Pacific National.
The problem with the idea of a frank injury is this. The plaintiff never reported any injury whilst working for Thiess Pty Ltd nor did he make any claim for compensation upon it. That is hardly remarkable because the plaintiff does not say that at any stage he ever had any symptoms doing the work he did for Thiess Pty Ltd. However, the plaintiff had an onset of symptoms whilst working for the second defendant, leading to surgery at the hands of Dr Young on 10 August 2011 but at no time did he ever report any injury to the second defendant or to the third defendant and at no time did he make any claim for compensation on either the second defendant or the third defendant prior to the termination of his services. Nevertheless, the defendant, fortunately for the plaintiff, has not raised any defence of a failing to report an injury or failing to make a claim for compensation within the times fixed by the statute. However, it does make the Court’s job difficult, in fact demanding.
Suffice it to say that the plaintiff’s knee has not progressed well since the operative treatment on 10 August 2011. On 17 November 2011 Dr Young noted that the plaintiff’s knee remained swollen. On that occasion he injected the knee with Depo Medrol and a local anaesthetic and prescribed Mobic. On 6 February 2012 Dr Young noted that the plaintiff was “still unhappy with his right knee”. He found walking down stairs uncomfortable. He felt pain in the medial joint line. Nevertheless the plaintiff described his pain as being different to the pain he experienced prior to the arthroscopy. However, there was still pain in the medial joint line, as previously found, and there was still a residual effusion. Dr Young organised an MRI scan of the left knee, which was performed by Dr Phillip Janke on 16 February 2012. There were findings consistent with the earlier surgery practised by Dr Young. Dr Janke went on to say this:

“The lateral meniscus, cruciate and collateral ligaments appear intact.
There is extensive grade 3 chondral loss in the medial femorotibial joint compartment. The lateral and patellofemoral compartments appear well preserved.
There is a small joint effusion and small Baker’s cyst.”

The extensive grade 3 chondral loss in the medial femorotibial joint compartment was a new finding. Dr Young reviewed the plaintiff on 22 February 2012 and the MRI scan was discussed. According to Dr Young it showed further tearing of the medial meniscus and “moderate osteoarthritic wear”. The doctor repeated the injection that he had made on 6 February 2012.

On 2 April 2012 Dr Young reviewed the plaintiff. The plaintiff told Dr Young that his knee had settled down. The plaintiff told Dr Young that he had played 18 holes of golf with his son on 1 April and that on 2 April his right knee felt good. Dr Young suggested to the plaintiff that he reduce his intake of anti-inflammatories and, because the plaintiff appeared to be making good progress, Dr Young made no further arrangements to see him.
However, other medical conditions intervened. The plaintiff returned to see Dr Samy about his knee on 31 August 2015. He saw him again on 8 September 2015 and the plaintiff told Dr Samy that he had arranged an appointment to see another orthopaedic surgeon, Dr Richard Verheul. On that date Dr Samy wrote a referral letter to Dr Verheul. Dr Samy also organised an X ray of the right knee; that was made on 8 September. That is reported thus:

“No fractures seen. Degenerative changes are noted. These being most severe in the medial weight bearing compartment. There is a loss of joint space with subchondral sclerosis and marginal osteophyte formation. No loose intra articular osseous bodies or significant joint effusion seen. Bony spurs are seen arising from the margins of the patella. There is loss of bone stock in the medial tibial condyle with a resultant slight varus angulation.”

The plaintiff saw Dr Verheul on 11 September 2015. Dr Verheul thought the plaintiff had severe osteoarthritis of his right knee. Dr Verheul’s history continues thus:

“This is on a background of an arthroscopy in 1996 [sic, scil. 1998] in Darwin, then again in 2010 [sic, scil. 2011] here in Newcastle. He did have an increasingly difficult time some months ago but it has once again settled somewhat and he is functioning reasonably well on it. I take note of the fact that Andrew takes intermittent Celebrex for his symptoms but otherwise no prescription medications.”

On examination Dr Verheul found 5 degrees of varus with a range of motion of between zero and 140 degrees. The doctor did not recommend further arthroscopy and thought the plaintiff’s knee was too good to undergo joint replacement surgery. He recommended that the plaintiff continue with anti inflammatory medication.

There was a further referral to Dr Verheul by Dr Samy on 1 August 2016. Associated with that Dr Samy arranged for a further plain X ray of the knee. That is reported thus:

“There is tricompartmental osteoarthritis changes primarily involving the medial and patellofemoral compartments with joint space narrowing and osteophytic lipping. No erosions. No meniscal calcification or intra articular loose bodies.”

By now all three compartments of the knee were affected by osteoarthritis. They were the patellofemoral compartment, a compartment which was noted to have irregularities in 1998 and now the medial compartment, probably the result of the partial medial meniscectomy performed by Dr Young in 2011 and also the lateral tibiofemoral compartment On 16 August 2016 Dr Verheul noted that the plaintiff had increasing symptoms relating to his right knee. Total knee replacement was discussed and it was arranged for the plaintiff to undergo total knee replacement on the right side at Lake Macquarie Private Hospital on 17 November 2016. Prior to that the plaintiff was seen by Dr Brett McFadyen, a specialist in anaesthesia and intensive care medicine, who believed the plaintiff was fit enough to undergo total knee replacement. That was carried out as planned on 17 November 2016.

The plaintiff was reviewed by Dr Verheul on 19 December 2016, four weeks after surgery, and the doctor noted a stable range of motion of the right knee between zero and 120 degrees. The plaintiff was reviewed by Dr Verheul on 12 April 2017, roughly six months post surgery. However, there is still an effusion or swelling in the knee at that time but Dr Verheul noted that the plaintiff had been able to obtain an excellent range of motion in his knee. Again, Mobic was prescribed for the plaintiff on this occasion. When seen a month later, on 10 May 2017, the doctor noted that the swelling had improved “a little bit” but there was still a significant effusion present on that day. On 24 May 2017 Dr Verheul issued a certificate addressed “To Whom it May Concern”. It says this:

“Mr Andrew Hector is a patient of mine who I have known since 2015. He has worked as a washery supervisor for a sustained period of time which involves frequent and multiple episodes of climbing up and down stairs. It is physical work in that regard. I have documented that in my notes of 2015.
It is my belief that the nature of Andrew’s work has permanently brought about his need for knee replacement surgery, which we ultimately performed on 17 November 2016.”

I am not concerned with Dr Verheul’s beliefs. I am guided by his opinions provided that they are reasoned. However, this opinion is not at all reasoned; it is a bare ipse dixit. Without explaining how and why the plaintiff’s work brought about the need for the total knee replacement the opinion is of no value to me whatever.

On 9 June 2017 the plaintiff underwent a bone scan. The bone scan is reported to show this:

“There is increased blood flow and blood pool activity in the right knee in a synovial distribution. This extends into the suprapatellar bursa. Delayed imaging shows a diffuse increase in uptake in the right knee involving tibial, femoral and patellar components. There is no focal abnormality uptake on SPECT imaging.
Distribution of activity throughout the remainder of the whole body imaging shows low grade activity in the medial compartment of the left knee and low grade increased uptake in shoulders consistent with osteoarthritis.”

In another letter addressed “To Whom it May Concern” Dr Verheul expressed the view that in all probability the plaintiff would require further surgical procedures to his right knee. The letter continues thus:

“At the moment I think it would be reasonable for Andrew to work a maximum of ten hours a day including travel time and for three alternate days per week. He can stand and sit as tolerated. I think that squatting, kneeling, climbing and ascending stairs, inclines and uneven ground should be minimised.
He has the ability to lift weights as tolerated but to carry them should be less than 10 kgs.
He can drive unrestricted and I believe he is capable and safe to operate heavy machinery.”

Although the letter is addressed “To Whom it May Concern” it appears likely to me that this missive was directed at the plaintiff’s employer, at this stage the third defendant.

In a letter of 21 June 2017 addressed to Dr Samy Dr Verheul referred to the examination of the plaintiff on that day. He went on to express this view:

“I think the only way to deal with Andrew’s symptoms would be with patellar resurfacing but I will make arrangements for him to have a CRP first just to make sure we have not got any underlying occult infection.”

On 13 July 2017 Dr Verheul wrote a report to the plaintiff’s current solicitors. It has been noted that this was prior to the termination of the plaintiff’s services by the third defendant. The body of the report is this:

“He has had a progressive deterioration in that right knee over the course of time. This is on a background of an arthroscopy to that right knee in 2010 [sic]. He works as a washery supervisor.
On physical examination on that day [11 September 2015] he had a 5 degree varus deformity of the knee and had a stable range of motion at 0-140 degrees. His X-ray demonstrated severe osteoarthritis. He had been managing his symptoms over the course of time with simple analgesics and Celebrex. He had an underlying problem with the right knee in regard to the medial meniscectomy performed in 2010 [sic], but the nature of his work has significantly aggravated and accelerated that underlying condition and has precipitated the need for knee replacement surgery, sooner rather than later in his life.
As such, the nature of his work in the coal mining industry has aggravated, accelerated and exacerbated the disease process and, as such, has been a substantial contributing factor to his current situation of osteoarthritis relating to his right knee.
The knee replacement that he underwent was required as a result of the osteoarthritis and the requirement for further surgery, that is resurfacing of the right patella, relates to this.”

Again, there are a number of ipse dixits. They must be ignored because they are not reasoned. Furthermore, I note that that history elides the early history taken by Dr Verheul about the arthroscopy practised in Darwin in 1998.

The operative treatment of the resurfacing of the plaintiff’s right patella was scheduled to occur on 5 October 2017. Dr Verheul mentions that in a letter of 16 August 2017. One assumes that the plaintiff saw Dr Verheul on 16 August 2017. However, a significant event occurred on the previous day 15 August 2017. It is to be noted, however, at this stage, that on 5 October 2017 at Lake Macquarie Private Hospital the plaintiff underwent resurfacing of the right patella and revision of the right knee replacement under the hands of Dr Verheul. The doctor describes the surgery thus:

“This was done under antibiotic prophylaxis and tourniquet control. His knee was exposed through the old incision and dissection carried down. A synovectomy was performed. The patella was resurfaced with a 38 mm all poly patellar button. A lateral reduction facet osteotomy of the patella was performed. The femoral and tibial components were found to be solid, congruent and stable. A layered closure to skin was performed.”

On 15 November 2017 Dr Verheul noted that the plaintiff had regained a full range of motion of the knee following the resurfacing of the patella.

On 13 February 2018 Dr Verheul noted that four months after the resurfacing of the right patella the plaintiff was starting to make some progress in that he was able to mobilise quite well on flat, even surfaces but he still struggled on uneven surfaces and on stairs in particular. Physiotherapy was prescribed. However, on 10 April 2018 Dr Verheul noted the plaintiff clinically had not really made much progress. On 23 June 2018 Dr Verheul noted the plaintiff remained very much in statu quo although the doctor’s Latin is ungrammatical. On that occasion Dr Verheul pointed out that the plaintiff was developing increasing problems in his left hip and left knee as a result of favouring the right leg.
No further surgery has been practised. On 26 February 2019 Dr Verheul noted in a report addressed to the plaintiff’s solicitors this:

“At this point in time, nothing further can be done for Andrew’s right knee, as we have tried all modalities to improve the situation. Nonetheless, his left knee continues to deteriorate as a result of favouring of that knee and we have performed an MRI on it. This demonstrates early osteoarthritis of his left knee and considering the response that he had to right knee replacement surgery, I suggest that we try a hyaluronic acid injection as a first course of treatment.
He will undoubtedly come to a left total knee replacement surgery at some time, but I am hoping to try and delay that for as long as possible.”

No doubt the desire is to delay left total knee replacement for as long as possible as the plaintiff does not appear to have had a good outcome from the right total knee replacement.

Termination of the plaintiff’s employment

I return to events of 15 August 2017. On that day there was a meeting between the operations manager of the Liddell mine, Mr David Foster, and with Mr Glenn Green, whom I understand to be a personnel officer. In evidence is a letter bearing date 12 September 2017: it is exhibit A. It tells me what occurred on 15 August 2017 and what had happened since the plaintiff’s total right knee replacement surgery and the circumstances in which the plaintiff’s services were terminated. The letter is this:

“I refer to your meeting with Glenn Green and myself on 15 August 2017, regarding your ongoing fitness for duty.
As discussed with you at this meeting, you have been on suitable duties since your knee operation in November 2016. These duties have been generally office based and have largely been limited to an average of three days per week, Monday to Friday day shift. During this time, the company has been extremely generous by keeping you on, on your original salary, which includes a roster pattern allowance and accommodating you in part time work when you feel fit enough to do so. Unfortunately, without a prospect to return to your original duties, the company cannot continue to offer these alternative arrangements.
We understand from our meeting that due to your ongoing knee problems after surgery, you have been advised by your treating specialist that at no stage in the future will you be able to perform your original duties as CHPP Supervisor. This is due to your limited ability to climb stairs. You have supplied medical certificates from Dr Muhsin Samy on 23 August 2017 and Dr Richard Verheul on 22 August 2017 confirming this advice. The medical certificates are attached to this letter.
After reviewing the medical evidence from Dr Samy and Dr Verheul, it is clear that you have no prospect of returning to your duties as a CHPP Supervisor. We have also given consideration to whether there are any other roles which you could perform or which could be modified to accommodate your restriction, however none have been identified. We have therefore decided to terminate your employment on the basis that you can no longer perform the inherent requirements of your role.
I confirm that your employment will be terminated effective Friday 15 September, 2017 and you will be paid four weeks in lieu of notice. Should you have any concerns with these arrangements please advise in writing by Monday 18 September 2017.
Thank you for your contribution to Liddell and I wish you well in the future.”

I reiterate that at no time had the plaintiff reported any injury arising out of or in the course of his employment nor had he made any claim for compensation. The provision to the plaintiff of light duties after his knee operation was clearly a matter between the plaintiff and the defendant: it was not mandated by the Workers Compensation Act or the defendant’s legal obligations as they perceived them at that time. Clearly the plaintiff was held in high esteem by his employer to have been offered the consideration which he was offered for a period of some nine months. The last paragraph of the letter attests to that fact as well. One can understand, where the defendant had no continuing legal obligation to the plaintiff, its decision to terminate his services. The plaintiff has not worked since. The plaintiff has not been actively looking for work. As I understand, his position he has been thinking about what work he might be able to do but has not actually sought any work.

Other medical conditions

There are some further medical issues to consider. The first matter to be considered is the plaintiff’s neck. At some time the plaintiff came under the care of a specialist medical practitioner, Dr Fazal Moughal. The records of the Blackalls Park Family Surgery tell me that on 18 July 2013 a letter from Dr Moughal was imported into that practice’s records. That was discussed with Dr Samy on 1 November 2013. The note seems to suggest the plaintiff had a high ferritin reading in his blood and various tests needed to be performed, inter alia, relating to a genetic abnormality which might mean the plaintiff was either affected by or carried a gene responsible for haemochromatosis. Later notes indicate that the plaintiff had to have his ferritin level taken every three months. On 26 November 2013 Dr Samy noted that the plaintiff was advised to reduce his alcohol intake by Dr Moughal. On 27 June 2014 Dr Samy noted that the plaintiff had been advised to have an ultrasound of his liver. On that occasion the plaintiff told Dr Samy that he in fact stopped drinking alcohol in November 2013.
The first thing that I have about the plaintiff’s neck is a CT scan performed at the request of Dr Fazal Moughal on 29 June 2014. The CT scan is reported by Dr Lynn Smith. The clinical history recorded on it is this:

“Neck pain. Spondylosis. ? Nerve compromise.”

This appears to indicate that the first person who received a complaint of neck pain was Dr Moughal. When he received that complaint I do not know. The substance of the MRI scan of the neck is this:

“There is no acute vertebral abnormality. Loss of signal in the intervertebral discs with early loss of disc height at C5-6.
C3-4: there is a central disc protrusion. It compresses the theca. There is no canal stenosis. Early changes in the facet joints but the foramina are not compromised.
C4-5: small central disc bulge. No canal stenosis. Again there is no significant foraminal compromise.
C5-6: posterior spurring effacing the chord causing a minimal compromise to the AP diameter of the spinal canal (9 mm). Uncovertebral spurring is more marked on the right and combines with facet joint change to cause a moderate compromise to the neuroforamen. Patent left.
C6-7: mild posterior osteophyte disc bar. No significant canal or foraminal compromise.
C7-T1: no focal disc protrusion. Facet joint changes but the canal and foramina are not compromised.
C1-2 articulation is intact.
No intrinsic chord abnormality. The craniocervical junction is within normal limits.
CONCLUSION
Cervical spondylosis most marked at C5-6 where there is an early compromise to canal dimensions. Uncovertebral spurring and facet joint change on the right is compromising the neuroforamen with the potential to efface the right C6 nerve root. The patient does not describe radiculopathy on the pain chart.”

On 10 December 2014 the plaintiff complained to Dr Samy that his neck pains were increasing. The plaintiff told Dr Samy that he is hoping to see a neurosurgeon and that he was in a health fund. The significance of the last observation is clearly about the ability of the plaintiff to pay for seeing a neurosurgeon. However, he was not referred to a neurosurgeon, he was referred to Professor Ghabrial, an orthopaedic surgeon. Before me in evidence is the doctor’s referral letter to Dr Ghabrial dated 10 December 2014 but the plaintiff did not see Dr Ghabrial at that time because the doctor was unavailable because of a personal illness.
The next time the GP’s practice notes any complaint about the neck is on 16 December 2015. The attending general practitioner on that occasion was Dr Janet Lyall. The complaints noted at that time were these:

“Noticed increased shoulder and knee aches - usually noticed this when iron gets too hi. Has history of neck aches. Now complaint of shoulder bilateral pain, right hand dominant. Maximum pain with abduction supraspinatus area and external rotation and flexion.”

Dr Lyall on that occasion prescribed certain testing, all of which was of various blood levels. However, on 21 December 2015 Dr Lyall discussed with the plaintiff taking Panadol Osteo and also about using acupuncture.

The plaintiff returned to see Dr Samy again on 22 January 2016 who noted this:

“Says pain running down the right arm. Says did not see a neurosurgeon for previous referral as it got better. Says now pains have come back. Wishes to have it attended to. Says in a health fund. Pain running down the medial aspect of the right arm.”

On that occasion Dr Samy organised for further investigations and issued a medical certificate to the plaintiff for “suitable duties”. However there is no evidence that such a document was ever provided by the plaintiff to the third defendant.

On 2 February 2016 there was again discussion about neck symptoms, the plaintiff’s telling Dr Samy that he had had symptoms on and off for the last 18 months but they had become constant in the previous two months. A referral was made to Dr Richard Ferch, a neurosurgeon. In his referral letter to Dr Ferch Dr Samy set out a history of the plaintiff’s having dull aches in the back of his lower neck and pains down the medial aspect of the right arm for about 18 months on and off but having such pains constantly for the previous two months. He annexed an MRI scan performed by Dr Phillip Janke on 29 January 2016 but Dr Janke noted that the appearances were unchanged since the previous study, by which I assume he meant the study reported upon by Dr Lynn Smith of 29 June 2014, which I have earlier quoted.
The history obtained by Dr Ferch is consistent with the history obtained by Dr Samy about the onset of the plaintiff’s neck pain, although he does not refer to the episode in 2014. It was decided to practice surgery. That surgery was performed by Dr Ferch on 11 May 2016. He describes it as a C5-6 foraminotomy and a C6 neurolysis. The idea was to remove protruding disc or other material from the C6 nerve root. On 21 June 2016 Dr Ferch noted that the plaintiff’s right upper limb pain had resolved following surgery and that he experienced only mild symptoms in his neck by that time. The plaintiff had no further consultation with Dr Ferch in 2016, which his letter of 21 June 2016 confirms.
However, the plaintiff went back to see Dr Ferch on 11 December 2018 following upon nerve conduction studies performed on the same day. According to Dr Ferch’s report of 11 December 2018 those nerve conduction studies showed no evidence of peripheral compromise. On that day the plaintiff was more symptomatic in the middle finger of one of his hands and was less troubled by pain radiating into the thumb or index finger. That appears to me to be somewhat unusual presentation. The doctor suggested transforaminal steroid injections, one for C6-7 level and another for the C5-6 level.

Anterior to that, however, the plaintiff had been referred by Dr Samy back to Professor Ghabrial for investigation of the plaintiff’s neck complaints; that was clearly after the plaintiff was interviewed on 15 August 2017. Annexed to Dr Samy’s referral letter to Dr Ghabrial on 23 August 2017 is a further MRI scan of the neck. The only observation to be made of that is it still shows a stenosis of the right foramen at the C5-6 level. The plaintiff saw Dr Ghabrial on 19 October 2017 as a result of that referral but what history the doctor obtained on that occasion or what his findings on that occasion were I do not know. His letter of 8 November 2017 does not set out that history or those findings. However, the doctor ordered further investigations. They were an X ray and ultrasound of the right shoulder, an X ray and ultrasound of the left shoulder and an X ray of the thoracic spine and an X ray of the left knee. One wonders how and why such investigations would be relevant to a referral for a neck complaint. Dr Ghabrial’s reports, except one, that are before me are purely medicolegal. There is only one complaint recorded in the GP’s notes about shoulders and that is the complaint recorded by Dr Lyall on 16 December 2015 about right shoulder pains which were noticed when the plaintiff’s iron levels were too high.

Medico-legal evidence

The medicolegal evidence before me is in one sense diametrically opposed and, on one side of it, internally inconsistent. Of the treating doctors I have nothing other than the reports of Dr Verheul addressed “To Whom it May Concern” that I have quoted and I again point out that those reports are unhelpful because they do not tell me why the doctor believes that the symptoms were somehow work related or the pathology was somehow work related. I have nothing from Dr Ferch about his opinion as to what was the cause of the problem which led him to practice surgery on 11 May 2016. I should indicate, the plaintiff told me he was off work for about three weeks following that procedure, which means that he probably returned to work in very early June 2016. Clearly, that was not incapacitating him at any relevant time prior to the termination of his services. What was incapacitating the plaintiff prior to the termination of his services was the condition of his right knee.
The X-rays of the plaintiff’s right shoulder and left shoulder show moderate degenerative changes in the acromioclavicular joint on the right side and mild to moderate changes on the left side. There was also said to be minimal irregularity in the region of the greater tuberosity on the right side associated with rotator cuff degeneration. The ultrasound of the left shoulder, however, is said to show disruption of the rotator cuff and each ultrasound shows some deltoid bursitis. The X-ray of the thoracic spine made at the request of Dr Ghabrial shows degenerative changes in the thoracic spine. The X-ray of the left knee ordered by Dr Ghabrial indicates findings consistent with degenerative change in that joint.
The first report which I will discuss is that of Dr Ghabrial; it bears date 8 November 2017. The second paragraph of that report is this:

“Mr Hector reported having multiple injuries during his employment in the Mines since 2004 until his retirement from the Mines in September 2017.”

I find that statement remarkable in that the plaintiff did not tell me of any single injury nor has any been pleaded. The statement appears to be formulaic. The penultimate paragraph of the letter is this:

“I believe his problem regarding his neck, both shoulders and both knees are the result of his heavy work activities during his employment in the mining industry.”

Again, a bare ipse dixit. In a report of 7 February 2018 following upon an attendance upon Dr Ghabrial after his attendance on 8 November 2017 the doctor said this in the second and third paragraphs:

“Mr Hector gave me the history of injuries involving his neck, both shoulders and both knees during the course of his employment in the Mines from 2004 until September 2017.
He reported that he had no specific accident but it was all due to the nature and conditions of his employment in the Mines involved in heavy activities and he developed neck pain radiating to the right arm.”

The first of those two paragraphs reiterates the formulaic sentence that I quoted from the first report, which has no substance whatever. The second paragraph which I have just quoted may have been directed to all the various parts of the body that the doctor wished to discuss, namely, the neck, the shoulders and the knees but of course it only refers to the neck pain.

The following are the doctor’s findings on examination of the neck and knees:

“Examination of the neck on 7 February 2018 showed moderate muscle guarding. The examination was moderately decreased to the right and mildly decreased to the left with pain. There was moderate tenderness all over the lower cervical spine. Neurological assessment of the upper limbs showed normal motor power, normal sensation and normal reflexes.
Examination of the right knee on 7 February 2018 showed a 25 centimetre anterior scar. There was no deformity. There was moderate swelling, mild effusion and moderate quadriceps muscle wasting. There was mild tenderness all over the right knee. The range of motion was 7 degrees-110 degrees. There were no crepitations and the ligaments were normal. There was discomfort in the patellofemoral joint. The sensation, flexion power and extension power were normal.
Examination of the left knee on 7 February 2018 showed no scars. There was mild valgus deformity. There was mild swelling, effusion and quadriceps muscle wasting. There was moderate tenderness on the outer aspect of the right knee. The range of motion was zero degrees-130 degrees. There were mild crepitations and the ligaments were normal. There was discomfort and maltracking of the patellofemoral joint. The sensation, flexion power and extension power were normal.”

The doctor goes on to give me a range of motion for each of the shoulders but that by itself is fairly meaningless. It is important to note that on examination of the neck neurological assessment of the upper limbs showed normal motor power, normal sensation and normal reflexes. In other words there was no evidence of any radiculopathy.

Dr Ghabrial provided these diagnoses:

“1. Right C5-6 foraminal narrowing with right arm radiculopathy for which he had surgery.
2. Bilateral post traumatic osteoarthritis of the knees for which he had four operations to the right knee and I believe that he will require left total knee replacement, not in the distant future.
3. Bilateral shoulder injuries with left shoulder rotator cuff tear and right shoulder acromial subdeltoid bursitis for which I could not exclude the high possibility of surgery, specifically for the left shoulder.
4. Multiple level thoracic post traumatic spondylosis.”

The first diagnosis is hardly controversial, is merely stating the surgical procedure performed by Dr Ferch on 11 May 2016. It is really history not diagnosis. As to the second diagnosis what, pray, I ask rhetorically, was the trauma which caused the post traumatic osteoarthritis in the knees? Furthermore, if the post traumatic osteoarthritis caused the need for the four operations, one of them was that carried out in Darwin in 1998. As to the third diagnosis what were the “injuries”? Does he mean by that that incidents giving rise to pathology such as an accident or event, an incident, or does he merely refer to pathology? If he is telling me that the plaintiff has bilateral shoulder pathology I wholly accept that, however, there is no history of any injury to either shoulder. As to the fourth diagnosis, again, what, pray, I ask was the trauma which caused the thoracic spondylosis. Furthermore, the plaintiff has never complained of pain in his thoracic spine.

In a separate report of 7 February 2018 Dr Ghabrial diagnoses 30% impairment of the neck 50% loss of efficient use of the right leg at or above the knee, 40% of the loss of efficient use of the left leg at or above the knee, 25% loss of efficient use of the right arm at or above the elbow “consequent upon the right shoulder and/or neck injury.”

A similar assessment is made of the loss of efficient use of the left arm at or above the elbow for the same reasons and there is then this statement:

“There is no deduction necessary as he had no pre-existing conditions or disease of any previous problems.”

That, with the utmost respect to the doctor, begs the question. If the plaintiff’s surgery in Darwin in 1998 contributed to the plaintiff’s right knee condition then that is a previous injury for which there must be some reduction in the assessment of the loss because that was not the result of injury arising out of or in the course of the plaintiff’s employment in New South Wales. Furthermore, the doctor does not address whether the osteoarthritis, which he said is “post traumatic”, without identifying what the trauma was, was idiopathic or how it might be caused by the plaintiff’s work.

The plaintiff’s solicitors also qualified Dr Alan Hopcroft, a general surgeon who specialises in orthopaedics. Dr Hopcroft examined the plaintiff on 10 May 2018 and generated a report of that date. In his history Dr Hopcroft stated that the plaintiff undertook “all the duties of a coalminer”. That is nonsense. The plaintiff did not work at any coalface nor, for example, was he a shot blaster in an open cut coalmine nor was he regularly driving trucks containing coal. There may have been the incidental use of bulldozers and graders at the CHPP at both Mount Owen and at Liddell but to suggest that the plaintiff did the full duties of a coalminer, which includes underground coalmining is patent nonsense. However, it points to the fact that the doctor may have generalised what he has heard from many other miners into Mr Hector’s experience of working in the CHPP at both Mount Owen and at Liddell.
On p 6 of his primary report Dr Hopcroft expressed this view:

“I believe the injuries to his neck, right knee, left knee and both shoulders is a disease of gradual process aggravated by the nature and conditions of his duties undertaken in the course of his employment in the coalmining industry.
I believe that the nature of the duties undertaken in the coalmining industry have contributed to the aggravation, acceleration and exacerbation of the disease processes.”

The doctor goes on to express the view about substantial contributing factor but it is not necessary for anybody employed in or about a coalmine to prove that to obtain workers compensation. The important thing to note is that Dr Hopcroft does not say that the employment caused the disease of gradual process, merely that the employment caused a disease of gradual process to be aggravated, accelerated, exacerbated or the like. In other words, there was not primary causation but secondary aggravation, et cetera. That must inevitably lead to there being some deductible proportion at least for injuries to the neck and any secondary losses.

In a supplementary report of 11 June 2019 Dr Hopcroft refers to “clear episodes of trauma” and there are no clear episodes of trauma at all. As far as the neck was concerned the doctor said this:

“Traumatic injuries lead to focal changes in a patient’s spine and skeleton, and that is clearly the case with this patient where the changes in his cervical spine are quite asymmetrically gross at C5-6 level which led to his surgery there.”

This is to rebut a suggestion that the plaintiff’s condition was idiopathic osteoarthritis. However, with the utmost respect to Dr Hopcroft one knows that the important levels in the low back are at L5-S1 and L4-5. The Court also knows important levels in the cervical spine are C5-6 and C6C7.

The plaintiff’s solicitors also qualified the late Dr John Harrison, a highly regarded and deeply respected orthopaedic surgeon whose passing is to be regretted. Dr Harrison provided assessments of the plaintiff’s impairment and losses; I shall refer to those later. The eleventh question he was asked was to provide his opinion as to whether the injury/condition suffered by the plaintiff in his neck, right knee, left knee, right shoulder and left shoulder:

“is a disease of gradual process or an aggravation of a disease of gradual process arising from the nature of the duties which our client undertakes or has undertaken in the course of our client’s employment in the coalmining industry, by its very nature, tendencies, incidents and characteristics involved the worker sustaining a real risk of suffering an injury of the nature from that which our client suffers?” [my emphasis]

The doctor answered “That is my opinion”. What opinion is he adopting, direct causation or merely aggravation or the like? The next question is this:

“Is it your opinion that our client’s work in the coalmining industry and the nature of duties which our client has undertaken in the coalmining industry contributed to the aggravation, acceleration or exacerbated [sic] of this disease process?”

The answer provided is “That is my opinion”. Again this puts us in the very quandary raised by the doctor’s previous answer and the quandary raised by the opinion of Dr Hopcroft.

The fourteenth question asked of Dr Harrison concerned the plaintiff’s right knee. The answer given to that is helpful. The answer is this:

“On the history he gave me of the slow onset of discomfort and awareness of pain affecting that knee (notwithstanding earlier arthroscopic intervention on that knee), the nature and conditions of his work does appear to have been a substantial contributing factor to development of symptoms affecting the degenerative changes from 2010 onwards from earlier imaging studies which I saw with minimal joint space narrowing to significant medial joint space narrowing and associated patellofemoral wear documented in those studies linking attribution to his work in the coalmining industry throughout that time in that way at the wash plant. That has led to the necessity of this said operative treatment and then when Dr Verheul’s judgment not to replace the patellar surface proved to get a suboptimal outcome for him, repeat surgery to replace the back surface of the kneecap was done with a secondary surgery, unfortunately, not totally resolving problems for him which are ongoing and continuing as I have detailed in the report which with respect to the patellofemoral discomfort in that right knee remaining.”

Finally the plaintiff also qualified Dr Anthony Schwarzer, a rheumatologist. Dr Schwarzer provides a short dissertation in his report of 18 August 2019 which he heads “Pathological Process”. It is this:

“The knee pathology is a result of repetitive twisting, standing and walking on uneven surfaces and repetitive kneeling and squatting. The osteoarthritis can be precipitated or exacerbated by internal disruption of the knee such as what may occur with a meniscal tear. Loss of integrity of the meniscus will lead to a loss of the normal cushioning of the joint surfaces. This lack of cushioning will cause repetitive trauma to the hyaline cartilage lining the joint. This will lead to wear and loss of integrity of the joint surfaces. Placing continued forces on the joint will lead to progressive joint damage with eventual loss of the smooth cartilage surfaces. Loss of function occurs through a loss of the smooth movement of the joint. Pain is a result of stimulation of the nociceptors in the joint capsule, synovium and subchondral bone.
The neck pathology occurs through the aggressive wear of the intervertebral discs and zygapophysial joints leading to disc space and joint space narrowing as well as osteophytes. These in turn will cause foraminal narrowing which will lead to nerve root irritation and compression. Clinically this is manifested as radicular or nerve root pain and neurological abnormalities. This presents a paresthesia, numbness and weakness in the arms. Neck pain arises from damage to the intervertebral discs and zygapophysial joints. Repetitive strains and abnormal forces on the neck such as may occur with driving a bulldozer or bobcat or repetitively rotating or jolting the neck may lead to such injuries.
Shoulder pain is typically the result of the impingement and tears of the rotator cuff muscles. Repetitive heavy lifting or repetitive elevation of the arms above shoulder height may cause such pathology. Osteoarthritic changes of the acromioclavicular joints may result in the formation of an osteophyte or spur that impinges on the supraspinatus tendon. This will lead to wear and tear of the tendon and inflammation or bursitis. Tears of the rotator cuff tendons may eventually lead to complete rupture of the tendon. Patients will typically report pain and weakness with arm elevation. Once there is loss of the integrity of the muscles, osteoarthritis of the glenohumeral joint may ensue leading to more pain and loss of function of the shoulder joint. It is my opinion that Mr Hector’s work in the coalmining industry and the nature of the duties which he undertook in the coalmining industry contributed to the aggravation, acceleration and exacerbation of the above disease processes. It is my opinion that Mr Hector’s employment, the incidents which occurred during the course of his employment and the very nature of the duties which he undertook in the coalmining industry, i.e. the tendencies, incidences and characteristics of that employment are, on the balance of probabilities, more likely than not a substantial contributing factor to the injury/condition from which he suffers.
I consider that the arthroscopic surgery undertaken by Dr Young, the knee replacement by Dr Verheul and the resurfacing of the right patella arose due to injuries/conditions suffered by Mr Hector in the course of his employment in the coalmining industry and the injuries/conditions gave rise to the necessity for the above operative treatments and, further, that the operative treatment was reasonable and necessary medical treatment arising from the injuries/conditions suffered by Mr Hector during the course of his employment in the coalmining industry.
I consider that the Monovisc injection in the left knee proposed by Dr Verheul is reasonable and necessary medical treatment. It arises from the condition of arthritis of the left knee which resulted from his employment in the coalmining industry.”

That last sentence of course is not consistent with the fourth paragraph of the opinion which I have just quoted from of the doctor.

What is stated by Dr Schwarzer must be compared with what is stated by Dr McGill. The relevant parts of Dr McGill’s report are these:

“Henriksen et al….performed a systematic review and meta analysis and reached the conclusion (expressed at the beginning of the discussion section) that ‘using a predefined algorithm, a causation score of zero was reached, showing that there is no evidence of a causal link between joint loading and the natural progression of knee osteoarthritis’.
Hannan et al….reported the results of studies using the Framingham cohort and concluded that ‘habitual physical activity does not increase the risk of knee osteoarthritis for men or women’.
In contrast to the above negative studies which have looked for an association between repetitive activities and osteoarthritis, the studies are very clear that trauma, including meniscal damage, is an important causative factor for the development of knee osteoarthritis. If the meniscectomy he had in 2010 was related to a specific injury then I would conclude that the injury was relevant to his subsequent right knee progressive osteoarthritis.
Gholami et al…studied 263 cases and 263 controls aged between 30 years and 70 years and reported that ‘this study did not show any significant association between knee osteoarthritis and daily occupational and non occupational activities.’ They specifically looked for an association with squatting, kneeling, standing, walking, climbing, carrying and lifting.

Further research has the potential to provide an even more accurate understanding of the factors predisposing to knee osteoarthritis but based on the available data, I think his right knee osteoarthritis occurred because of constitutional predisposition, meniscectomy in 2010 and being overweight. I do not think that the general nature of his work duties provided an influence to the progression. It is likely that from time to time he would have experienced more soreness for a brief period because of physical activity at or away from work.
The degenerative changes in his spine are constitutional. The review by Williams and Sambrook (Best Practice & Research Clinical Rheumatology 2011; 25: 69 79) specifically looked for associations between occupation and neck and back pain. They found an association between professional driving and the risk of prolapsed cervical intervertebral disc. Mr Hector did not suffer a prolapsed cervical disc. Interestingly the authors found heavy lifting protected against cervical disc prolapse. There was no data that supported an association between the activities performed by Mr Hector and degenerative change in the spine (which was the cause of his right C-6 foraminotomy and is the cause of his current neck discomfort and restriction).
The degenerative changes in his shoulders are common in his age group and unrelated to his previous work. Svendsen et al….studied the possible association between MRI measured rotator cuff degeneration and work activities. They found a weak association between jobs requiring a lot of marked arm elevation (such as house painters) but no association with force requirements (lifting et cetera). The frequency of above shoulder height work performed by Mr Hector based on the description he provided was well below the threshold required based on the study by Svendsen.
With respect to his acromioclavicular joint osteoarthritis, I am not aware of any study which has related the findings to work duties similar to those performed by Mr Hector.
His prognosis with respect to the right knee is for a continuation of the current situation. The left knee will continue to gradually deteriorate in accordance with the natural history of osteoarthritis. He is also likely to have slow progression of degenerative change in his shoulders. The radiological changes in his spine will progress but they may not result in any clinical deterioration.”

Dr Roger Rowe, an orthopaedic surgeon qualified by the defendant believes that all of the plaintiff’s problems are due to a constitutional idiopathic osteoarthritis and the various losses and impairment the plaintiff now has are due to the underlying osteoarthritic condition, which is not in any way related to the type of work the plaintiff performed for the defendant.

Consideration

I have gone into some detail in considering the plaintiff’s right knee condition. I have already found that it is likely that in some way or other because of the work the plaintiff was doing for the second defendant as CHPP Electrical Technician, immediately prior to seeing Dr Samy on 11 July 2011, the plaintiff ruptured or tore or caused eventually the medial meniscus to break, resulting in the acute symptoms which led to his consulting Dr Samy and then Dr Young and undergoing the partial medial meniscectomy at the hands of Dr Young on 10 August 2011. The course that has then ensued was predictable. Once the medial meniscus was damaged the process of osteoarthritis was either triggered off or accelerated, leading to the deterioration which is pointed to by Dr Verheul.
The question is, was there an underlying degenerative process first identified at the arthroscopy in Darwin on 11 May 1998 and first adverted to by Dr Steve Baddeley when he diagnosed patellofemoral arthritis in May of 1997? Looking at the matter holistically I believe that that is highly likely. I know that there was an osteoarthritic or degenerative process affecting the plaintiff’s cervical spine, affecting his thoracic spine, affecting both his shoulders, both his knees and the left hip. The areas that have not been investigated are the plaintiff’s low back and his ankles and his right hip. In fact there are no X rays as far as I am aware,of either hip but everything points to a widespread degenerative process in the plaintiff’s musculoskeletal system.
The question is, what does the evidence before me allow me to conclude about the conditions other than the plaintiff’s right knee? The easiest one to deal with is the plaintiff’s left knee. There is a complaint recorded by Dr Janet Lyall on 16 December 2015 of knee aches, which appears to be a reference to both knees on which the plaintiff usually noticed when his iron level became too high. The next reference to the left knee pain is in Dr Verheul’s report of 25 June 2018 and which I have already quoted and in which the doctor expresses the view that the left hip and knee pain is a result of the plaintiff favouring the right leg. However, this is some nine months after the plaintiff stopped doing any work and at a time when his activity levels were extremely limited. I accept that there was a complaint of left knee pain at that time but it appears to be likely to be related to the underlying degenerative condition of the left knee rather than because excess strain was being thrown on the left lower limb because of problems the plaintiff had in his right lower limb. I am therefore not persuaded on the balance of probabilities that the problems that the plaintiff has in his left knee are causally related to his work with any of the three defendants. It is mere speculation at best that there be some connection.
I shall now deal with the condition of the plaintiff’s shoulders. Again, the only reference that I have found to a complaint about the left shoulder was a complaint recorded by Dr Janet Lyall on 16 December 2015. This is of course when the plaintiff was either off work as a result of his total knee replacement or on selected duties with the third defendant. Furthermore, the plaintiff did not associate the shoulder pain with his work but with the iron level in his blood when it was too high. The question of investigating shoulder pain was taken up by Dr Ghabrial after the plaintiff’s services were terminated. Again, there is no evidence that I can accept that the plaintiff’s work activities precipitated symptoms in the shoulders, let alone caused the pathology. I am not persuaded on the balance of probabilities that the problem the plaintiff has in either shoulder was caused by the plaintiff’s work with any of the three defendants. Furthermore, when one looks at the opinions of Dr Ghabrial and Dr Hopcroft they expressed the view that the plaintiff’s condition in his right and left arm were caused either by local pathology in the shoulder and pathology in the neck, according to Dr Ghabrial, or local pathology in the shoulder or pathology in the neck, according to Dr Hopcroft. However, there is no true ongoing radiculopathy such that symptoms in the arms could be related to the neck. Again, I am not persuaded on the balance of probabilities that there is any ongoing problem in either the plaintiff’s upper limbs that was caused by some ongoing problem with the neck.
The neck is the more difficult part of the body to consider. The first consideration is that I have nothing from Dr Moughal, the specialist who referred the plaintiff for the MRI of the plaintiff’s neck made on 29 June 2014. By that stage the degenerative process in the neck is very well advanced. Shortly after that was made the plaintiff did complain to Dr Samy of neck pain in December 2014 and was referred to Professor Ghabrial. He did not see Dr Ghabrial because he was not available and later told Dr Samy that the pain in his neck went away. However, the neck pain appears to have recurred in late 2015 or early 2016, leading to the referral to Dr Ferch. Noting a form of referred or radicular pain the doctor performed the foraminotomy on 11 May 2016 and it appears the plaintiff then made a fairly good recovery but went back again in December 2018 because of further problems. Without anything from Dr Moughal and without any opinion from Dr Ferch prior to his carrying out the surgery in 2016 and, bearing in mind that there is no opinion evidence from Dr Ferch about the cause of the problem I am not persuaded on the balance of probabilities the problem that the plaintiff had in his neck was causally related to any work that he did for any of the defendants. If, for example, the plaintiff could refer to some event which might be described as a “injury” which led to a marked increase of symptoms which led to his being referred to Dr Ferch and the need for surgery I might be able to relate the two but of course the plaintiff never reported any injury and no frank injury is pleaded. Again, it appears to me that the underlying constitutional condition which affects not only the plaintiff’s cervical spine but also his thoracic spine is the cause of the ongoing problems.
The plaintiff’s claims under s 66 for impairment of his neck and the loss of efficient use of each of his arms at or above the elbow and for the loss of efficient use of his left leg at or above the knee must fail.

Lump sum compensation

The remaining claim the plaintiff makes under s 66 is for the loss of efficient use of his right leg at or above the knee. Dr Ghabrial has diagnosed a 50% loss of efficient use of the right leg. Dr Hopcroft puts it at 60%. Dr Harrison and Dr Rowe both put it at 35% and Dr McGill puts it at 37%. The Court is quite used to workers having total knee joint replacements. I should also add that Dr Schwarzer diagnoses a 50% loss of efficient use of the right leg at or above the knee. I am prepared to accept, particularly bearing in mind the assessment of Dr Harrison and Dr Rowe, that the plaintiff had a 40% loss of efficient use of right leg at or above the knee.
Section 69A, as it applies to coalminers, is that enacted by Act No. 89 of 1995. The repeal of that s 68A and its replacement with s 68A and s 68B by Act No. 120 of 1996 does not apply to those who were employed in or about a coalmine. That can be found in cl 81 of the Workers Compensation (General) Regulation 1995, relying upon a specific provision permitting regulations to disapply provisions of Act No. 120 of 1996 to coalminers. Accordingly there is no “deductible proportion” within the meaning of s 68A. The rule in Rodios v Trefle therefore must apply to the plaintiff’s claim for the loss of efficient use of his right leg at or above the knee. However, there is no assessment of the loss of efficient use of the plaintiff’s right leg at or above the knee resulting from the surgery practised in Darwin on 11 May 1998 or osteoarthritis which was present prior to the tearing of the medial meniscus. Because of that lack of evidence I cannot apply the rule in Rodios v Trefle. I shall therefore award the plaintiff a 40% loss of efficient use of his right leg at or above the knee.
My finding under s 66 entitles the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from that loss. Whilst there may have been a loss prior to the total knee replacement for ease of calculation I will look upon that loss as arising on or about 17 November 2016, that is some three and a half years ago. If the plaintiff has a normal life expectancy he can expect to live for a further 29 years. There is no evidence from any physician before me. I was somewhat concerned about the high iron levels in the plaintiff’s body and the suggestion that he is a haemochromatosis carrier, that he has a fatty liver, not caused by alcohol, but because of that condition the plaintiff has been required to give up alcohol. However, otherwise the plaintiff appears to be in relatively good health medically, as distinct from orthopaedically.
The purpose of the lower limb in the bipedal animal is locomotion. Our legs are there to let us walk, run and move around. When the plaintiff’s right leg is injured to the extent that it is his ability to move himself around is severely compromised. It is clear from the lengthy work history that I have quoted that the plaintiff has always been an active man. There is evidence from outside his work history which attests to that fact. For example, between 1985 and 1991 the plaintiff was a member of the Army Reserve serving in the 4th Field Engineer Regiment of the Royal Australian Engineers. In that role he represented Australia overseas in the United Nations peacekeeping force in Namibia. For his service to his Queen and Country he has been awarded the Australian Service Medal, the Australian Defence Medal and a United Nations Service Citation. The plaintiff had for many years been actively involved in the Scout movement and is currently a Venturer Unit leader with 1st Teralba Sea Scouts. He leads a unit of 12 Venturers, seven of whom are girls and five of whom are boys, although they would probably refer to themselves as young men and young women. This is generally a demanding role and the plaintiff told me that these days he is a spectator rather than a leader and he cannot participate in the varied activities of his Venturer Unit, which include clearly Sea Scout activities in the summer months, sailing, canoeing and kayaking and other associated Scouting activities in other parts of the year such as bushwalking, camping, caving, rock climbing and abseiling. However, it must be borne in mind that the most I can award the plaintiff under s 67 is the princely sum of $66,200 and that maximum is reserved for a most extreme case, which includes conditions such as quadriplegia, paraplegia and I have awarded it to a young man suffering from hemiparesis, that is spasticity of one side of the body with organic brain damage which led to intellectual dysfunction and social disinhibition. The plaintiff’s case is nowhere near a most extreme case but I accept that the extent of his pain and suffering related to his right knee has been extensive. It appears to me that this case stands roughly in proportion to a most extreme case in the ratio of 3:10. I believe the appropriate lump sum to award the plaintiff under s 67 is $20,000.

Weekly payments

The remaining claim, of course, is for weekly payments. During the first six months of incapacity the most the plaintiff can recover is the current weekly wage rate. That, I am told, is $2,866.83. The wages schedule tells me that the plaintiff’s probable weekly earnings but for injury have been at all mature times $4,100 per week. The question is, what could the plaintiff earn in his current injured state? The plaintiff is not totally incapacitated. However, he has essentially been reduced to doing clerical work or bench work and not permitted to do any heavy work or work in confined or awkward spaces. He is prevented from doing work carrying items, work requiring him to stand all the time or walk all the time. Ideally the work which he did for Pacific National is work he might be able to do now provided he did not have to do long walking but that was not an aspect of that job. However, I do not know how much he earned in that work. I do know from exhibit 2, a report of Mr Sebastian Bass dated 18 October 2018 that average weekly earnings for male electricians are $1,986.70. The average earnings for male electrical engineering draftsmen and technicians were $1,898.30 and average male earnings for production managers were $2,371.10 per week. Clearly the plaintiff’s ability to earn far exceeds that of electricians. He could perhaps teach at a TAFE, that may be sedentary work but, doing the best I can, it appears to me that the plaintiff’s ability to earn in his injured state is no greater than $2,500 per week. The difference is $1,600 per week.
Does anyone need any further reasons at 5.20?

MCMAHON: No.

CLINGAN: No, your Honour.

I make an award for the plaintiff for $1,600 per week from 18 September 2017 to 17 March 2018. I make an award at the rate of weekly payments thereafter for a man with a dependent wife and one dependent child until 7 September 2018 and after that to the rate for a man with a dependant wife only. I grant the plaintiff liberty to apply by the filing of any necessary affidavit or affidavits to establish whether his son Liam was wholly or mainly dependent upon him for support at all material times until 16 September 2019. I make an award for the plaintiff for $39,690 for 40% loss of efficient use of the plaintiff’s right leg at or above the knee. I make an award for the plaintiff pursuant to s 67 for $20,000. I order the defendant to pay the plaintiff’s hospital, medical and life expenses for the treatment of his right leg. I accept that the process is the aggravation et cetera of a pre-existing degenerative condition; the award must be borne by the third defendant. I make awards for the first and second defendants. I make an award for the third defendant in respect of the claims in respect of the impairment of the neck, the loss of efficient use of the left leg at or above the knee, the right arm at or above the elbow and the left arm at or above the elbow.
I order the third defendant to pay the plaintiff’s costs. I grant the parties liberty to apply in respect of any dispute about costs.
Now, you wanted something, Ms Clingan?

CLINGAN: Your Honour, four qualifying fees as well for the doctors.

HIS HONOUR: I certify qualifying fees for the late Dr John Harrison and for Dr Anthony Schwarzer but I was not assisted by either Dr Ghabrial or Dr Hopcroft, so you only have two.

Counsel are to bring in tomorrow short minutes of order.

**********

Decision last updated: 22 May 2020

Medium Neutral Citation:	Hector v Thiess Pty Limited and others [2020] NSWDC 228
Hearing dates:	6-7 May 2020
Date of orders:	07 May 2020
Decision date:	07 May 2020
Before:	Neilson DCJ
Decision:	See [80] to [85]
Catchwords:	Coal Miner’s Workers Compensation – Claims for weekly payments and lump sums – P employed by 1D as a technician and later supervisor of a Coal Handling Processing Plant (CHPP) (formerly known as a “washery”) at Mt Owen Mine - P later employed by 2D and 3D as an electrical technician and later electrical supervisor of CHPP at Liddell - Consideration of such duties, compared to underground coal mining and work in an open cut mine. P developed osteoarthritis/degenerative disease in neck, shoulders, thoracic spine, hips and knees - Conflicting medical evidence on causation – Internal inconsistencies in P’s medical evidence - Court not assisted by recitation by experts of formulae - Need to explain why conditions were work related. Lump sum compensation – Deductible proportion – WCA 1987 s68A as enacted by Act No 89 of 1995 applied to coal miners, not s68A and s168B enacted by Act No 120 of 1996 - Deductible proportion only applies to impairment of the back, neck and pelvis - Rules in Rodios v Trefle still applies to all other losses – at [77].
Legislation Cited:	Workers Compensation Act 1987 Workers Compensation (General) Regulation 1995 WorkCover Legislation Amendment Act 1995 No. 89 WorkCover Legislation Amendment Act 1996 No. 120
Cases Cited:	Radios v Trefle [1937] WCR 285
Category:	Principal judgment
Parties:	(Plaintiff) Andrew Clifton Hector (1st Defendant) Thiess Pty Ltd (2nd Defendant) Liddell Coal Preparation Plant Pty Limited (3rd Defendant) Liddell Coal Operations Pty Limited
Representation:	Counsel: (Plaintiff) P. O’Rourke (Defendant) S. McMahon Solicitors: (Plaintiff) Whitelaw McDonald (Defendant) Sparke Helmore Lawyers
File Number(s):	RJ00088/18
Publication restriction:	Nil.