Johnston v Donaldson Coal Pty Limited

[2023] NSWDC 250

District Court

New South Wales

Medium Neutral Citation:

Johnston v Donaldson Coal Pty Limited & Ors [2023] NSWDC 250

Hearing dates:

22-24 May 2023.

Date of orders:

24 May 2023

Decision date:

24 May 2023

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the Defendants.

Catchwords:

CIVIL - WORKERS’ COMPENSATION – COAL MINING – Claim by worker for weekly payments – Claim for expenses of total knee replacement – Claim that injuries arise from the “nature and conditions of employment” – Consideration of the use of the term “nature and conditions of employment”.

CIVIL – WORKERS’ COMPENSATION – COAL MINING – EXPERT EVIDENCE – Whether expert made medical or legal judgment.

Legislation Cited:

Workers’ Compensation Act 1926 (NSW)

Cases Cited:

Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656

Simpson or Thom v Sinclair [1917] AC 127; (1917) 10 BWCC 220

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Plaintiff – Scott William Johnston
First Defendant – Donaldson Coal Pty Limited
Second Defendant - PIMS Mining Pty Ltd
Third Defendant - Professional Mining Group Pty Ltd

Representation:

Counsel:
Plaintiff – Ms Balendra, K.
Defendants – Mr McMahon, S,
Solicitors:
Plaintiff – Whitelaw McDonald
Defendants – Hicksons Lawyers

File Number(s):

2022/00358625

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: The Plaintiff, Mr Scott William Johnston, claims weekly payments of compensation at the rate of $2,333.60 per week from 30 August 2022 to 13 April 2023 pursuant to section 9 of the Workers’ Compensation Act 1926 as it applies to those who are injured in or about a coal mine. In the alternative he claims under section 11(1) of the Workers’ Compensation Act 1926 for partial incapacity. It was agreed that the relevant current wage rate is $2,333.60 per week.

2. The Plaintiff also claims his expenses under section 60, and in particular the cost of a total left knee replacement. It is agreed that the costs of that treatment amount to $26,527.15. The Plaintiff has himself paid those expenses and seeks to be reimbursed by one of the Defendants.

3. The Plaintiff has joined three defendants. The First Defendant is Donaldson Coal Pty Ltd by whom the Plaintiff was employed at the Abel Mine between 1 December 2008 and 11 August 2015. He also brings proceedings against the Second Defendant, PIMS Mining Pty Ltd, by whom he was employed at the Appin Colliery between 21 December 2019 and 11 May 2020. The Third Defendant is Professional Mining Group Pty Ltd by whom the Plaintiff was employed between 1 March 2021 and 29 August 2022 at the Ashton Colliery.

4. The Plaintiff was last paid wages by the Third Defendant on 29 August 2022 and that was the day on which the Plaintiff's services came to an end. He voluntary resigned that employment after taking a short period of long service leave. The Plaintiff's industrial history is best described in the report of Dr Alan Hopcroft, a general surgeon qualified by the Plaintiff's solicitors. That industrial history is this:

“This patient left school at the age of 16 and undertook many and varied labouring jobs including that of a tyre fitter, and has also been employed by Alcan and undertaken extensive labouring work with a gas line maintenance company.

In 1985 he decided to enter the coal mining industry beginning work in underground mining at Wyee State Mine on a full-time basis.

History of the Present Injury

He worked for 13 years with the Wyee State mining company until it closed and he accepted a redundancy but worked on the mining industry both in mines in the Singleton and Muswellbrook areas for about ten years. He ultimately took a full-time position at the Nardell Colliery and after that worked at other mines including the one at Appin and ultimately finished his mining career with Ashton Coal.”

5. According to the Statement of Claim, the Plaintiff's injury with the First Defendant occurred on 7 March 2011 and a further injury occurred to him during the whole of his period of employment at the Abel Mine, due to the “nature and conditions of employment". As against the Second Defendant, the Plaintiff relies upon the "nature and conditions of employment". As against the Third Defendant, the Plaintiff relies on this allegation of injury:

“The nature and conditions of employment for the period 01 03 2021 to date and/or the aggravation, acceleration, exacerbation or deterioration of a disease in relation to which the employment contributed to the aggravation, acceleration, exacerbation or deterioration of the disease.”

6. Schedule 3 to the Statement of Claim bears a hearing "Particulars of the Nature and Conditions of Employment in Relation to All the Defendants" and contains 10 paragraphs. Those 10 paragraphs are these:

“1. Repetitive lifting and/or heaving often involving bending and/or twisting and/or kneeling and squatting in order to lift and carry heavy equipment including stone dust bags, oil drums, roof bolts, flexi- bolts up to eight metres in length, heavy electrical cables, pneumatic pumps, and manual installation and removal of heavy pneumatic pumps in inundated locations thereby placing strain on neck, back, shoulders, wrists, hips, knees and ankles

2. Walking long distances on rough, uneven ground, muddy, sodden and/or inundated ground and through swillies and standing on canches, wearing heavy footwear of a wellington type boot nature placing strain on ankles, knees and hips

3. Striking head on low canopies, protrusions from roof surfaces including baulks, timbers, w straps, side shields and roof bolts causing severe jolting and jarring of the neck

4. Driving and/or riding in coal mining transport vehicles which travel over rough and uneven ground resulting in sudden, unexpected severe jolts and jarring of the body in particular the neck and lower back

5. Roof and rib bolting, installation of mesh, water pipes, and air lines on roof involving working with arms above shoulder height with extension of the neck causing strain on the neck, shoulders and back

6. Installation of mesh, water pipes, and air lines on roof involving working with arms above shoulder height

7. Balancing vent tubes on head placing strain on the neck and shoulders

8. Working in confined spaces in awkward positions including squatting, crouching, stooping, twisting and bending in order to dig out coal and other rocks and to retrieve buried machinery using picks and shovels to break coal and rocks placing stain on the neck, shoulders, back, hips, knees, and ankles

9. Using pneumatic tools generating vibrations subjecting all body parts including hands and wrists to severe shocks

10. Exacerbation of all of the above by the requirement to wear and/or carry heavy items including pit cap, cap lamp, batter, self-rescuer, tools and monitoring equipment all of which make it difficult to in many circumstances to maintain a proper balance placing unnatural strain and stresses on various parts of the body.”

7. One will note that there is not only an allegation of injury to a knee, but also injuries to the neck, back, shoulders, wrists, hips, knees, and ankles, and "unnatural strain and stresses on various parts of the body". How that is relevant to a claim in respect of a knee condition is quite beyond me, but this really merely represents pro forma "pleading".

8. I have used the word "pleading" because "nature and conditions of employment" is not a term of art. In Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656, a case argued by Mr J W Catsanos for the worker and Mr P M Hall QC, leading Mr I A D McFarlane for the employer, I said this at 667:

“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practice in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as "quaint". My colleague Burke J has repeatedly referred to it as a "meaningless concept". It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by the worker over a period time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a period of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or the aggravation, acceleration, exacerbation of the deterioration of a disease within section 16.”

9. In Mirkovic, I was called upon not to solve the problem caused by the different ways meant by people who use the term "nature and conditions of employment", but by what a Commissioner of the Compensation Court had meant when he used the term. I went on to point out the Commissioner was in fact referring to the aggravation and or exacerbation of an underlying disease process, because he, elsewhere, used similar wording. Those words are terms of art in the Workers’ Compensation Act1926.

10. I have also had cause to point out from time to time that those who like to use the terms "nature and conditions of employment" should realise its origin and use the words appropriately. I refer to the speech of Lord Shaw of Dunfermline in Simpson or Thom v Sinclair [1917] AC 127; (1917) 10 BWCC 220. At AC 142 or BWC 235, his Lordship said this:

“In short, my view of the statute is that the expression ‘arising out of the employment’ is not confined to the mere ‘nature of the employment.’ The expression, in my opinion, applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute – ‘arising out of the employment’ - apply.”

If one wants to rely upon "nature and conditions of employment”, one should also rely upon its obligations and incidents. Despite my repeatedly pointing these matters out, there are a number of practitioners who live in the distant past and still continue to plead "nature and conditions of employment" despite the criticism which has been constantly levelled at it.

11. There are terms of art in the Workers’ Compensation Act. Those terms of art are the words "injury", and "disease", and the words "aggravation, acceleration, exacerbation and deterioration".

12. Ultimately, the Plaintiff relied upon an injury which befell the Plaintiff on 7 March 2011 while working for the First Defendant. The Plaintiff then relied in the alternative to the aggravation, acceleration, exacerbation or deterioration of a disease which, under the law, would mean that the Third Defendant was liable, being the final employer to employ the worker in conditions to which the alleged disease was due, that is the work of an Underground Mining Deputy.

13. Why the Second Defendant was joined is completely unknown, especially when, for example, the Plaintiff also told me of working at the Narrabri Underground Coal Mine and the work there was more arduous than any other mine in which he had worked because he had to walk in underground mines for about 20 kilometres per day. Nevertheless, that employer was not joined.

14. There is no dispute that the Plaintiff commenced working for Donaldson Coal Pty Ltd on 1 December 2008. He became a mining deputy in 2010. The injury relied upon occurred on Monday, 7 March 2011. On that day, the Plaintiff commenced his shift at 6:00am. He was working 10 hour shifts. According to Exhibit J, that is his claim for compensation, or the first page thereof, the injury occurred at around 9:00am. According to Exhibit 3, the first page of the Employer's Report of Injury Form, he reported it to the manager of the mine at 11.30am on 7 March 2011 and stopped working at 12.10pm.

15. The Plaintiff was working underground doing an inspection. He went to turn around and he found that his left foot was stuck in a slurry as his body turned, twisting his knee. According to Exhibit 3, he felt a painful sensation in his left knee at the time. He went from the Abel Mine to Maitland Hospital where an x-ray was performed at 2:45pm. That is reported thus:

"Mild degenerative changes are noted with a loss of joint space in the medial tibiofemoral compartment. There is no radiographic evidence of acute bony injury. There is what appears to be a small joint effusion."

16. The Plaintiff then attended upon his general practitioner, Dr Mansel Ismay of the Abermain Surgery at Abermain. He was referred on 8 March 2011 by Dr Ismay to a physiotherapist, Mr Glen Aveling in Kurri Kurri, and also to Dr Richard Harbury, an orthopaedic surgeon with rooms at Gateshead. The referral letters to those gentlemen, Exhibits L and M, refer to the Plaintiff’s having been prescribed with Panadeine Forte tablets on 13 November 1998. Why it was necessary to refer to an old prescription of that drug is unclear, however such medications are generally prescribed as painkilling medication for musculoskeletal problems.

17. On the following day, 9 March 2011, the Defendant made a return to work plan for the Plaintiff. It was proposed to commence on 10 March 2011 for at least a week. The suitable duties proposed were these:

"General administration duties.

Review of procedures/documentation."

The restrictions contained in the return to work plan were these:

"Surface duties only.

Limit walking/standing/sitting.

No lifting.

Change posture regularly.

Elevated left leg where possible."

18. It appears that the Plaintiff commenced doing those duties. He saw Dr Harbury on 15 March 2011. In the final paragraph of the report that he generated on 15 March 2011, Dr Harbury suggested that the Plaintiff continue with the physiotherapy which had been prescribed for him and "his light duties". The history as recorded by Dr Harbury was this:

“He was standing underground on a rough, irregular surface and he twisted around but his left leg seemed to get stuck in a small hole, such that he had an external rotation strain. He had immediate onset of global pain with swelling. It may have been due to a haemarthrosis, it is not really clear. Since that time he has been resting it and has been on light duties in the office and doing physiotherapy. He has a degree of improvement but is still far from normal. He now describes pain on the medial joint line and also on the superior lateral joint line. He has been avoiding squatting. He has the occasional patella click which doesn't seem too painful. He has been very cautious with it so cannot comment regarding his stability and functional capacity. He is generally well with just some blood pressure. He is a non smoker. Personal activities include fishing and maintaining his property.”

19. On examination, the doctor found symmetrical physiological alignment of the knees. The left knee had an effusion and a subtle lack of full extension. There was a stable patellofemoral joint and no pain upon compression or patellofemoral tracking. There was no tenderness around the joint margins, but McMurray's test produced a palpable swelling in the anterolateral joint line and also discomfort associated with it. Otherwise, the knee was stable and distally he was neurovascularly intact.

20. Dr Harbury thought the x-ray "projects normally", albeit it was not so reported by the radiologist at the Maitland Hospital, and subsequent investigations also suggest otherwise.

21. Given the mechanism of injury, it is quite understandable that Dr Harbury proposed that the Plaintiff's clinical examination was not inconsistent with a lateral meniscal tear. That is, one would expect the mechanism of injury to cause a problem for the lateral meniscal, but the doctor also noticed some tenderness in the medial joint line. He ordered an MRI.

22. The MRI was carried out on 22 March 2011. It was of the left knee only. It is reported in this fashion:

“Multiplanar views were obtained. The extensor mechanism is intact. The patellar cartilage shows moderate median ridge and medial facet chondromalacia Grade 4 and there is a small focus of lateral patellar chondromalacia also. The femoral sulcus also shows Grade 4 loss of cartilage. The femoral cartilage medially is also extensively denuded in the mid third with Grade 4 changes. The tibial cartilage shows less marked thinning deep to the medial meniscus with some patchy oedema of degenerative type. The lateral tibiofemoral compartment is maintained.

The patient has a Baker's cyst of 40mm which contains loose bodies with two loose bodies of several millimetres in the superior aspect of the Baker's cyst.

The medial meniscus shows degenerative change and there is a degenerative type oblique tear of the posterior horn/body junction of 16mm. The lateral meniscus appears intact.

The ACL does not show a tear. There is minimal thickening of the mid third fibres, probably residue of remote injury with healing. The posterior cruciate shows minimal tendinopathy at the femoral original. There is no tear.

The collateral ligaments, biceps and popliteus appear intact.”

The comment made by the radiologist, Dr Walker, is this:

“Moderately advanced patellofemoral and medial tibiofemoral degenerative cartilage loss. Degenerative oblique tear medial meniscus. No lateral meniscal tear has been defined. Baker's cyst with loose bodies.”

23. The Plaintiff returned to see Dr Richard Harbury on 29 March 2011, some three weeks and a day after the injury. The substance of the doctor's report is this:

“He had the MRI of his knee which has been very helpful. It shows that he has no clear pathology in the lateral joint line. On the medial joint line he has a combination of a medial meniscal tear and some early degenerative change on the extreme medial aspect of the joint. As such I've explained to him that he has a mixed picture and he stirred up his problem on his medial joint line. Clinically he feels he's getting on a bit better within the limitations of the duties he's doing, and he can walk quite comfortably now so we've come the plan that he can gradually increase his activity, try some selected underground duties such as walking on the rough uneven surfaces, doing deliveries but avoiding heavy labour and I'll plan to see him again in 6 weeks time to assess his progress.”

24. One will note that the doctor found no lateral joint line damage, however there was a problem on the medial side which the doctor thought to have been "stirred up". That verbiage is apt to describe an exacerbation. It is clear that Dr Harbury was certifying that the Plaintiff could do increased light duties underground, for example doing walking, which is one of the major activities of a mine deputy, that is, carrying out inspections.

25. The Plaintiff returned to see Dr Harbury on 11 May 2011, some eight weeks after the injury. Dr Harbury noted that the Plaintiff was improving, but the left knee was not quite as it was prior to the documented injury. However, by that time the Plaintiff was managing his full underground duties "with some discomfort medially". The penultimate paragraph of the doctor's report is this:

“I agree with his suggestion that we leave things for the moment and I do not think that surgery is going to benefit him beyond his current situation. My hope is that this will continue to improve slowly and hopefully allow him to return to his pre-injury status. As such, we have left things open ended for the moment, on the understanding that if things aren't going his way and his pain worsens that he should come and see me, and we will discuss his situation if necessary at that time.”

26. The Plaintiff did not see Dr Harbury again until 22 October 2020, some nine and a half years almost later. One can draw an inference that things went the Plaintiff's way, that is, the return to his pre-injury status, and one certainly cannot presume that his symptoms got worse. If they had, no doubt the Plaintiff would have returned to see Dr Harbury within 2011, however, as I have said, he did not see him again until 2020.

26. The Plaintiff told me that prior to 7 March 2011, he had no problem at all with his left knee. There has to be a question mark on that issue. The records of the Abermain Surgery that are before me commence with an entry on 26 April 2001, although the prescribing details go back to 9 November 1998. The Plaintiff was born in June 1962. He told me that he has been attending upon the Abermain Surgery since his birth. However, the practice moved from one place to another, and it could be that all of the records have not been computerised. It may be that some old records have been lost or destroyed. Relevant to the current issue, however, is a consultation that was carried out by Dr Mansel Ismay on 30 October 2008.

27. On that day, Dr Ismay carried out an examination of the patient's left knee. It was not tender and there was a full range of movement. Dr Ismay generated a document he referred to as a "certificate". A copy of the document is Exhibit S. The addressee is not identified. The substance of the document this:

“This is to certify that I have today examined: 30/10/08 [the Plaintiff].

….

In my opinion, Mr Johnston has no history of a left knee problem. On examination the L knee appears stable with no pain or disability.”

When that was put to the Plaintiff, he could not recall the occasion. However, the Plaintiff told me of commencing work at the Abel Coal Mine on 1 December 2008, and it is possible that it was required for a pre-employment medical that often accompanies joining or re-joining the coal mining industry. However, it does raise the spectre of someone suspecting the Plaintiff had a pre-existing problem in his left knee.

29. Dr Walker’s report of the MRI of 23 May 2011 suggests that there may have been an old injury to the left anterior cruciate ligament.

30. The Plaintiff worked at the Abel Mine as an underground deputy until 11 August 2015, when he was made redundant. He then performed work at the Wambo Colliery and the Ulan Colliery. Between 16 June 2016 and 2 June 2018, he worked at the Ashton Colliery for a contractor. After that, another contractor took over and he continued to work at the Ashton Colliery for that contractor, and on 24 November 2018 he found employment directly at the Ashton Colliery.

31. However, that ceased on 20 October 2019, and on the following day he started working for the Second Defendant at the Appin Underground Mine, south of Sydney and west of Wollongong. He worked there until 1 May 2020, when he took a break from work. He did not start working again until late October 2020, when he commenced at the Narrabri Underground Coal Mine.

32. The Plaintiff's case is that he tried to do normal work with discomfort which he was seeking to manage himself by using his swimming pool at his home in order to perform hydrotherapy. In evidence, he sought to say that he consulted his general practitioner at the Abermain Surgery from time to time, but that did not appear to be correct. The last visit recorded at the Abermain Surgery concerning the Plaintiff's left knee in 2011 was on 14 April 2011. He was seen on that occasion by a Dr Coltheart. Dr Coltheart noted that the Plaintiff was to commence work on full duties in the following week, which would have been the week commencing on Monday, 20 April 2011. On that occasion, there was a prescription for micardis tablets for regulating the Plaintiff's blood pressure. Thereafter, the Plaintiff saw one of his general practitioner's colleagues on 20 occasions prior to complaining about his left knee on 12 October 2017, more than six years later.

33. There is, however, a possibility that he had complained to Dr Ismay on 18 May 2016 about his left knee, because on that occasion there was a prescription of Arthrexin, which is anti-inflammatory medication: I am so told by the expert qualified by the Defendant, Dr Posel, an orthopaedic surgeon. The Plaintiff thought that the Arthrexin had been prescribed to him for control of gout, but that appears to me to be highly unlikely.

34. There are other indications that Arthrexin was prescribed to the Plaintiff for musculoskeletal problems. However, the next consultation after that of 18 May 2016 was again with Dr Ismay on 21 July 2016, some two months later. Again, Arthrexin was prescribed. But the Plaintiff was having problems at that time with the heel of his left foot and with his feet generally. The Plaintiff thought that his pain could be associated with his work boots, which are essentially Wellington style gumboots. It is unknown for what condition the Arthrexin was prescribed on 18 May 2016, but it may well be the same condition for which is was prescribed on 21 July 2016.

35. As I said, the first reference to the Plaintiff's knee was on 12 October 2017. The history recorded was osteoarthritic pain in the knees (plural). Again, Arthrexin was prescribed. On 23 September 2018, the Plaintiff saw a different general practitioner, Dr Manar Al Azzawi. The doctor noted that there was osteoarthritis of the left knee, for which the Plaintiff was taking Non Specific Anti Inflammatory Drugs as the need arose. The doctor appears to be more concerned about the Plaintiff's blood pressure, which was on the high side, and the doctor went on to record the Plaintiff's alcohol intake, his diet, and encouraged weight loss, exercise, and monitoring of the blood pressure. The prescription on that occasion was not for Arthrexin but for other medication for other conditions.

36. On 28 July 2020, the Plaintiff saw Dr Ismay. It was a review to consider the Plaintiff's blood pressure and his medications. The Plaintiff told the doctor that he was well. He had not been working for several months. I know from other evidence given by the Plaintiff that he stopped working on the Appin Colliery on 1 May 2020. On 8 October 2020, he saw Dr Ismay again and this is recorded in the clinical notes, "Recurrent severe bilateral knee pain. Seen Dr Harbury in past. See old notes."

37. His doctor ordered plain x-rays of the knees (again plural). He also made a referral to Dr Harbury. The referral letter is Exhibit N. Dr Harbury saw the Plaintiff on 22 October 2020, a date I have mentioned earlier. Dr Harbury's report, after thanking the general practitioner for the referral, and referring to his seeing the Plaintiff in 2011, continues thus:

“He is 58 now. He is normally working as a mining supervisor underground. He is between jobs at the moment and looking to get one in the near future but his left knee function has been a bit up and down. He's a little concerned about the medical that is involved with his new position.”

That was obviously the medical examination required of him to re-join the coal mining industry, working at the Narrabri Underground Coal Mine. The Plaintiff had been off work since 1 May 2020. The flare up referred to by Dr Ismay in his clinical notes can only have been when the Plaintiff was absent from the coal mining industry.

38. The substance of Dr Harbury's report is this:

“With reference to his knees, his left one is the main problem. He has some low grade symptoms on the right but not disabling. On the left side he has medial joint line pain on and off which interferes with his activity when sore. He has usually no rest pain, occasional pain at night and can tolerate walking over rough ground with minimal discomfort in general. There has been no weakness, occasional clicking and grinding and no locking. He has always had bandy knees [genua vara] and has noticed no recent difference and he has had Voltaren for treatment and nothing else. He has no inflammatory disorders. He had a workplace injury to that knee in 2011 as described in my previous letters. He is otherwise well. He is an occasional smoker. He has no diabetes, no DVT, just some blood pressure.

On examination he has early varus malalignment of the left knee. He has fixed flexion of 2-3d°. He has a flexion of up to 105° degrees versus 120+° on the other side. He has some medial pseudo laxity but other wise a stable knee. He has no effusion, mild medial tenderness, some crepitus in the patellofemoral joint but pain free and a normal hip. He is neurovascularly intact.

X-rays confirm the clinical diagnosis of osteoarthritis with bone on bone changes.

I have talked to him about his diagnosis and how it may be treated. I recommend non-operative treatment for the moment which would be simple medication such as Panadol and anti-inflammatories, physiotherapy, maintaining a healthy weight and keeping as active as possible. He is unsuitable for surgical intervention as the only useful treatment is a knee replacement and his symptoms do not currently warrant that.”

39. One will note that medial joint line pain was "on and off", which would indicate that it was intermittent. There is no history given of a gradual deterioration in the Plaintiff's pain level since 2011, of it's getting worse and worse as the years went by. Indeed, as far as Dr Harbury was concerned, keeping as active as possible was the way of obviating symptoms, of obviating disability. But, of course, in these proceedings, the Plaintiff, through his lawyers maintains that being active was what was making his condition worse.

40. The last line of Dr Harbury's report of 22 October 2020 is this:

"It is likely that this deterioration is [related to his] previous injury in 2011 in my opinion."

That is a bare ipse dixit. The doctor does not explain how it might be so. As will become abundantly clear, when I discuss the opinion of Dr Posel, the patient's osteoarthritis of his left knee was well established prior to the event of 7 March 2011. As I said, the doctor admitted that event could have "stirred up" the problem on the medial side, that is, exacerbated it. There was no evidence that there was any local pathology caused to the lateral border or in the lateral compartment at the time of the event of 7 March 2011.

41. The records of the Abermain Surgery for 9 November 2020 indicate the Plaintiff was to start work on the following week. I do not know what day 9 November 2020 was, but, clearly, the Plaintiff did not start working on the Narrabri Underground Mine until probably the second week of November 2020, well after his examination by Dr Harbury on 22 October 2020.

42. On 8 January 2021, the Plaintiff saw Dr Phillipa Lennox at the Abermain Surgery. She made fuller notes than were usually made at that practice. The first problem she documented was about scripts. The documentation is this:

“asking for script for arthrexin

using most days for L knee pain

also on diuretic agent and arb for HTN [probably hypertension]

discussed risk of kidney injury on same

to trial panadol osteo and knee brace, avoid NSAIDs [Non Specific Anti Inflammatory Drugs].”

The second issue recorded by Dr Lennox was that the Plaintiff was overdue for a colonoscopy. The third issue concerned a skin lesion which required excision.

43. On 13 August 2021, the Plaintiff saw Dr Saif Al Kadhi at the Abermain Surgery. The Plaintiff himself sought referrals to Professor Y.A.E. Ghabrial and Dr Benjamin East. As I understand it, Dr East was a doctor that the Plaintiff consulted concerning bilateral shoulder problems. Referrals were made as requested by the Plaintiff. Why the Plaintiff asked to see Professor Ghabriel is unclear. The Plaintiff told me that he had been recommended to him by others. When asked if it was by his solicitor, he could not remember.

44. The only constant thing one sees in the Coal Miner's Workers Compensation List is a report from Professor Y.A.E. Ghabrial in almost every Plaintiff's case. Other workers in the past have told me that they have been told by the solicitor to ask to be referred to him. I mention this because chronologically, the next thing that happened is that the Plaintiff then saw Professor Ghabrial on 30 September 2021, and Professor Ghabrial ordered further radiological investigations.

45. They were an x-ray of the cervical spine, an x-ray of each knee, and CT scan of both feet and ankles. These investigations were carried out on 15 October 2021. The x-rays of the knees are reported thus:

“Right

There is tricompartmental osteoarthritis in the right knee worse in the medial compartment where there is almost complete loss of joint space and small osteophytes, as well as the medial facet of the patellofemoral joint where there is extensive osteophyte formation. No evidence of joint effusion.

Left

There is tricompartmental osteoarthritis in the left knee with complete loss of medial joint space, more so than on the right as well as osteophyte formation. There is also osteoarthritis in the medial facet of the patellofemoral joint. No joint effusion.”

As far as the investigation of the feet and ankles were concerned, the impression of the radiologist, Dr McDougall, was this:

“Degenerative changes in both feet as described. Calcification in the left ankle mortise joint and around the peroneus brevis tendon raise the possibility of crystal arthropathy.”

The latter concept, "crystal arthropathy", is an apt description of the effect of gout.

46. Exhibit O is a short report from Professor Ghabrial, bearing date 21 December 2021, addressed to the referring doctor. After setting out the investigations which he had ordered, Professor Ghabrial said this:

“Regarding surgery, I believe his knees will require surgery during the next two years as there is bone on bone. He is tolerating that now but at some stage it will become quite painful requiring total knee replacement surgery.

…

I believe he has seen Dr Harbury for his knees as well. He has not seen anyone regarding his feet and ankles hence it would be available to see a Foot & Ankle Surgeon for an opinion about that problem.

He is still working and has been an Underground Miner for 37 years. I believe at most, he will have another 6 - 9 months before he submits to retirement on medical grounds.”

47. And so it came to pass, because on 29 August 2022 the Plaintiff's resignation came into effect. When seen by Dr Posel on 12 April 2023, the Plaintiff referred to stopping work as his “retirement”.

48. On 7 December 2021, the Plaintiff saw Dr Bridget Cavanagh at the Abermain Surgery. Dr Cavanagh obtained a history of the Plaintiff's having joint pains. She recorded this:

“Joint pains

- Wrists, ankles

- Does a lot of walking at work and shovelling

- Finds everything is starting to wear down ?related to repetitious work as a miner.

- L knee is problemsome the most

- Lots of heavy lifting at work

- Has seen a specialist before for the same - Dr Harbury

- doesn't currently want anything done with them, just wants them documented”.

When cross examined about that, the Plaintiff confirmed that he meant he wanted them documented, but when asked why he wanted them documented the Plaintiff was evasive.

49. On 14 February 2022, the Plaintiff saw Dr Saif Al Kadhi again at the Abermain Surgery. One of the problems noted by Dr Al Kadhi was gout affecting the Plaintiff's left ankle. For that he was prescribed a drug known as colchicine. Of course, that is consistent with Arthrexin not been prescribed to the Plaintiff for gout but for anti-inflammatory problems.

50. On 24 June 2022, the Plaintiff saw Dr Sam Fathi at the Abermain Surgery and sought a referral to Dr Harbury. That was given to him. It is Exhibit P. Exhibit P contains these opening sentences:

“Thank you for seeing Scott Johnston a 60 yrs old Male, for your opinion and management regarding left knee Mr Johnston is complaining of ongoing constant pain and swelling of his left knee stopping him from walking long distances affecting his work.”

51. The Plaintiff saw Dr Harbury on 7 July 2022. The second paragraph of his report is this:

“His knee is becoming dysfunctional and painful. It has global pain particularly anteromedially worse with weight bearing on uneven ground, getting worse for at least 12 months. It is present with most weight bearing, he has low grade rest and sleep ache which occasionally wakes him. It has been weak but stable with clicking and crunching, some swelling but no locking. He has had physiotherapy and Voltaren without benefit. He does have gout in the past affecting his feet and takes a preventer and doesn't think this is currently active.”

It is important to note in that history that the plaintiff told Dr Harbury he had no locking of the joint. He had given the same history about that symptom on 22 October 2020. In evidence, the Plaintiff said that his knee had locked, and when asked when that occurred he felt it was about a year and a half before the surgery practiced by Dr Harbury on 12 September 2022. That cannot be so. There is in fact no history of the Plaintiff's knee locking at any time prior to the Plaintiff's undergoing knee replacement surgery.

52. One will also note that the history recorded by Dr Harbury on 7 July 2022 is of the Plaintiff's problems getting worse "for at least 12 months", not gradually getting worse since 3 July 2011, a period of some 11 years.

53. The diagnosis was of osteoarthritis of the medial knee. The Plaintiff discussed undergoing total knee replacement with Dr Harbury and that was offered to him, and he agreed to take it. In a second report, bearing date 7 July 2022, Dr Harbury wrote to Coal Mines Insurance, the insurer of both the First, Second, and the Third Defendants, seeking approval to undertake the total knee replacement surgery. That letter contains this:

“Time frames for return to work on suitable duties and pre injury duties post surgery would be return to suitable duties between 6-12 weeks which will be flat level ground, no underground areas, seated breaks as needed and ability to comfortably drive before returning to work. Looking for return to normal pre injury duties somewhere between 3 and 5 months post surgery depending on recovery.”

In other words, as far as Dr Harbury was concerned, the Plaintiff would be able to get back to being an underground deputy manager of a coal mine before the expiration of five months post-surgery.

54. The penultimate paragraph of the letter contains another ipse dixit, "I believe surgery is required as a result of the work injury sustained on 7th March 2011”. There is absolutely no reasoning process advanced for that opinion. It is common ground that on 11 August 2022 Coal Mines Insurance refused to authorise the procedure. The third letter of 7 July 2022 from Dr Harbury identified the hospital where the surgery would be practiced, the Lake Macquarie Private Hospital, the name of the operating surgeon, Dr Harbury, and the name of the anaesthetist, although it did not name the surgeon's assistant. It also set out the Doctor’s fee for the total replacement surgery.

55. On 12 September 2022, the Plaintiff was admitted to the Lake Macquarie Private Hospital at Gateshead and underwent a total left knee replacement at the hands of Dr Harbury. The discharge summary, Exhibit R, gives as the Principle Diagnosis this: "Rheumatology, degenerative arthropathies, arthritis, right [sic] knee." The Plaintiff was discharged by the hospital on 16 September 2022. An x-ray performed after the surgical procedure on 20 October 2022 showed the total knee replacement was well positioned and that there was no periprosthetic lucency or tibia tray lift, and that the patella resurfacing could be seen. It contains this matter: "Overall alignment through the knee is well maintained."

56. Dr Harbury prepared another report, bearing date 26 October 2022, addressed to Dr Ismay. The first three paragraphs of that report are these:

“I saw Scott today. It is 6 weeks later after his left knee replacement. He is improving over time. He has some moderate discomfort there but it is getting better. He takes no regular analgesics. He has some modest night pain which again is improving and I would expect this to go over the next 6 weeks or so. He's been seeing the physio regularly. The knee feels stable to him. His range of movement is functional and there are no wound concerns or other areas of note.

Clinically he has appropriate alignment of the knee. Has a range from 5° to 90° +, the knee is stable to AP and collateral testing, his patellar tracking is good and he has a moderate effusion.

I have asked him to particularly work on optimising his range of movement especially extension. It is important to get this early otherwise it is difficult to get and it does allow a much improved level of function once it is obtained. His x-rays today look excellent, all well positioned, in place and in good condition.”

The doctor went on to say that routinely he sees his patients one year post surgery and he would be happy to see the Plaintiff again at any time in the future.

57. There is no medico-legal report from Dr Harbury in which he has been asked to explain his ipse dixits. He has not been called to give evidence, nor has his absence from the witness box been explained.

58. The Plaintiff relies on one further report. It is from Dr Alan Hopcroft, the general surgeon, to whom I have earlier referred. He saw the Plaintiff on 9 November last year. Under headings, "Diagnosis, Opinion and Prognosis" the doctor's first and third paragraphs are these:

“This patient suffered a serious injury to his left knee joint in the underground mining accident of 7 March 2011 tearing the medial meniscal cartilage of his knee joint and having that problem treated conservatively. Since that time he has seen a slow deterioration in his left knee function with increasing pain and restriction in movement and relying extensively on the right leg has seen his right knee joint function deteriorate at a slightly lesser right but also with pain and restriction in movement on weight bearing activity.

…

I believe his left total knee joint replacement surgery was reasonably necessary as a result of the injury suffered on 7 March 2011 (coal mines insurance denying their responsibility to cover the ongoing effects of that injury).”

59. The first thing to point out is that the mechanism of injury was such that the Plaintiff could not have torn the medial meniscus. The second thing to point out it is it is clear from the radiological investigations at that time that the medial meniscus had previously been torn or a tear developed in the process of degenerative change and that was something that Dr Harbury thought had been "stirred up", that is exacerbated, by the event of 7 March 2011. As I shall make clear when I refer to the report of Dr Posel, there is no evidence of any intra-articular damage to the Plaintiff's left knee in the injury of 7 March 2011. The thesis of Dr Hopcroft, which I have just quoted, is untenable. He seems to believe that the injury of 7 March 2011 caused a tearing of the medial meniscus, clearly damage to an intraarticular service that set off the process of osteoarthritis in his left knee, and because the Plaintiff was somehow throwing more weight on his right knee that caused a problem in the Plaintiff's right knee.

60. This cannot be supported. However, to use the good old Australian vernacular expression, Dr Hopcroft then had “a bob each way”. The next four paragraphs under the heading in his report that I last quoted are these:

“I believe the nature and conditions of this patient's employment has [sic] caused the serious deteriorating in his bilateral knee functioning as over the many years of underground coal mining work he has had to walk long distances on rough and uneven and muddy surfaces often straining his lower limbs and spine and shoulders as well. In spite of wearing wellington type boots constantly has seen a slow deterioration in bilateral lower limb functioning but has also struck his head on low canopies injuring his spine, has been transported in rough underground coal mining transport vehicles jarring his back and limbs extensively. He has undertaken the installation of roof and rib bolting, lifting weights above shoulder level and further straining his limbs and has had to handle vent tubes, work in confined spaces, use pneumatic tools and being exposed to the high frequency vibrations of that equipment.

He has also had to wear and carry items including pit cap lamps, batteries, self-rescue tools and monitoring equipment.

This patient is not fit to return to underground coal mining activities because of his accumulated pathologies and is unlikely to see such a recovery from his left total knee joint replacement surgery that could see him contemplate returning to coal mining duties where he would be exposing himself to loosening of his prosthesis and the deterioration in his left knee function, even post operatively.

He has suffered from bilateral and advanced post-traumatic knee joint arthritis and has undergone a technically successfully left total knee joint replacement procedure but requires further careful monitoring and directions with physiotherapeutic and hydrotherapeutic treatments if he is to see further recovery from that problem.”

61. What the significance of the Plaintiff straining his spine and shoulders, and striking his head on low canopies, has got to do with this case is quite beyond me. How the Plaintiff's "accumulated pathologies" is referrable to the period of incapacity claimed is quite beyond me. The only trauma of which there is a history is the event of 7 March 2011. To suggest that event caused knee joint arthritis bilaterally is nonsense.

62. The whole history which I just quoted does not come from the Plaintiff but comes from schedule 3 of the Statement of Claim, the "particulars of the Nature and Conditions of Employment in Relation to all the Defendants" contained in the Statement of Claim. Dr Hopcroft is not there speaking as a medical practitioner. He is speaking as a lawyer, and not a very learned one.

63. Of course, the doctor might be trying to refer to the aggravation, acceleration, exacerbation, or deterioration, or worsening, of a disease, but he doesn't say so. He could be referring to the effect of attrition on an otherwise degenerative joint, but he does not. With the utmost respect to Dr Hopcroft, the opinion is worthless.

64. At request of the Defendant's solicitor, the Plaintiff saw Dr Daniel Posel on 13 April 2023. On page 3 of Dr Posel's primary report, the following is the first paragraph under the heading "Background":

“Scott Johnston is almost 61 years of age. Subsequent to taking long-service leave, Scott Johnston retired from his position as a contracting underground coal mining deputy on 29 August 2022. He stated today he has no plans to return to the workforce.”

65. On page 9 of the same report, Dr Posel recorded this:

“Scott Johnston stated he is now unsure as to what work he can perform. At the time of leaving the coal mining industry, he was performing his full duties as an underground coal mining deputy. Scott Johnston stated today he had ‘no choice but to retire’.”

66. The Plaintiff's position is quite inconsistent. At the foot of page 3 of the doctor's report, this is recorded:

“Scott Johnston self-funded his left total knee replacement performed on 12 September 2022. The most recent medical documentation regarding this left knee replacement is in the general practitioner notes of 22 November 2022, at 10 weeks post-surgery where such documents, "progressing well since operation still some swelling". Notwithstanding, Scott Johnston reports his knee replacement has only improved his left knee function to only 60% of normal. Prior to the surgery, he reports less than 50% function.”

67. If the Plaintiff's level of functioning has improved by more than 10%, so that now it is at least 60%, but prior to that was less than 50%, and prior to stopping work he could do his pre-injury duties, then it stands as a matter of logic he can now do is pre-injury duties. Dr Posel goes on to say, he thought it likely that the extent of the Plaintiff's recovery was greater than 60%.

68. I also again point out that Dr Harbury thought the Plaintiff would be able to return to full duties, that is, his pre-accident work as an underground coal mining deputy within five months of the total knee replacement. The Plaintiff appears to have elected to retire after a lengthy career in the coal mining industry. There is nothing at all dishonourable about that. There is nothing at all unusual about that, provided one tells the truth. On this issue, the Plaintiff's evidence was most unsatisfactory.

69. On page 4 of his primary report, Dr Posel commenced discussing the history of the Plaintiff's left knee injury, the event of 7 March 2011. He disagreed with Dr Harbury that the plain x-rays of the Plaintiff's left knee carried out on 7 March 2011 were normal. He points out that they do show degenerative change as reported by the radiologist. Dr Posel was able to see the MRI scan on the internet. He concurred with the radiologist, Dr Colin Walker, that there was no evidence of any acute injury to the left knee. The bony oedema on the medial tibial plateau, and to a lesser extent on the medial femoral condyle appear to be degenerative in nature rather than due to acute bony contusion. In other words, they were pre-existing. Dr Posel went on to add this comment:

“- With respect, there is no evidence on this MRI scan of any acute insult to his chronic pathology in a medial compartment.

- In support of such, Dr Harbury stated ‘he can walk quite comfortably now’. Had there been an acute insult to the medial compartment of this left knee injury of three weeks previously, such planned activities would not have been possible, nor would recovery have been so rapid.”

70. Dr Posel repeated that proposition when it was pointed out that the Plaintiff had reported marked improvement in symptoms since commencing physiotherapy as set out in the Coal Mines Insurance document, that is Exhibit 5, a document bearing date 31 March 2011. Dr Posel's opinion is this:

“There appears to have been some issue with the left knee warranting an assessment by Dr Ismay on 30 October 2008. Dr Ismay supplied a work certificate on 30 October 2008 stating: ‘Mr Johnston has no history of a left knee problem. On examination, the left knee appears stable with no pain or disability’. No x-ray of the left knee was performed at that stage.

X-rays performed on the day of injury on 7 March 2011, identified mild degenerative change in the medial compartment. This mild degenerative change preexisted the injury on 7 March 2011. Similarly, the MRI scan performed at two weeks post injury, identified at least moderate pre existing degenerative change in the left knee.

As discussed above, I have been able to retrieve the MRI scan online, I support the reporting Radiologist's comments that there is no evidence of an acute injury to this left knee. I find no effusion and the bone marrow oedema, mainly on the medial aspect of the medial tibial plateau, as documented by Dr Colin Walker, Radiologist, appears degenerate in nature.

Scott Johnston's description of the twisting injury to his left knee today mirrors the documentation by Dr Richard Harbury, in his initial assessment on 15 March 2021. Scott Johnston stated he twisted to the left on his left knee, this would have increased the load through the lateral compartment and Dr Harbury thus suspected a lateral compartmental injury with a lateral meniscal tear. This was not confirmed on the MRI scan. There being no acute intraarticular injury to the left knee, appropriately, no surgical intervention was required, and Scott Johnston appears to have resumed his preinjury duties as an underground coal miner (deputy) between 8-10 weeks later.

There is no evidence that the soft tissue injury to the left knee of 7 March 2011 accelerated the underlying preexisting degenerative process. There has never been an injury to the right knee. Updated x-rays of both knees, 15 October 2021, exhibit bilateral tricompartmental degenerative change. I have reviewed these x-rays online. On the AP film, the degree of osteoarthritis in each medial compartment is essentially similar. On the Rosenberg film, there is a little more degenerative change on the left knee that the right, but on the skyline film, there is more patellofemoral wear in the right than the left knee.

There may well be a familial component to Scott Johnston's knee osteoarthritis in that his father has undergone a total knee replacement [at age 70].

It makes no sense that a patient who had to self-fund the total knee replacement would not put in an effort post-surgery to regain good knee movements, unless there is an ulterior motive.

At the time of resigning from the coal mining industry (following long service leave) on 29 August 2022, Scott Johnston was performing all his usual duties as an underground coal mining deputy. Prior to his total knee replacement, he reports less than 50% function overall of his left knee and this has now improved subjectively to 60% of normal. There has been a subjective improvement in his left knee function and thus from a left knee perspective, Scott Johnston would be fit to resume, if he so desired, employment as an underground coal mining deputy.

I noted today a disparity between reported symptoms in the left knee and objective findings. There is no radiological complication with the left total knee replacement and the alignment of the leg is in the appropriate 5° of valgus. Based on my assessment of his left knee replacement today, I believe that his left knee function overall is in excess of his 60%. There is no further intervention… required to the left knee replacement.

It is his right knee which is now the rate limiting factor. Scott Johnston attributes his right knee osteoarthritis to years of the right leg carrying the left. With respect, there is no biomechanical basis for this assertion:

- For only three days Scott Johnston used a walking aid.

- On day - 1 post knee replacement, he used a walking frame and on days 2 and 3 post knee replacement, he used a walking stick held in his right hand. On these two days he would have shifted his centre of gravity to the right (but for only a very short period in his lifetime).

- Already at that stage there was advanced osteoarthritis in the right knee.

Scott Johnston has now updated his private health insurance to cover knee replacement surgery. I concur with his plan to undergo similar right total knee replacement as a private patient at the end of 2023.”

71. The doctor then provided three formal diagnoses. They are these:

1. The soft tissue injury to the left knee settled, and with a resumption of pre-injury duties, between 8 to 10 weeks post injury, Scott Johnston did not require any further period of time off work nor a period of suitable duties while in the employ of coal mining industry as an underground mining deputy until his last day on 15 August 2020, before electing to retire. There were thus no ongoing sequelae as a result of the injury of the left knee on 7 March 2011.

2. Total left knee replacement performed seven months ago as a private patient, where there is no evidence of radiological complication and where objective function appears greater than reported subjectively as being of only 60% of normal. A more aggressive home-based left knee stretching exercise program is required. By his own admission, Scott Johnston stated that his left knee function is gradually improving, but recovery of further knee flexion and regaining a full extension is feasible with this dedicated stretching program.

3. Constitutional osteoarthritis of both knees. His right knee osteoarthritis is now symptomatic, for which a similar right total knee replacement will be appropriate later in 2023, also as a private patient.

72. I accept the opinions of Dr Posel. Dr Posel has greater expertise in the field of orthopaedics than Dr Hopcroft. Dr Posel's opinion is compelling. The Plaintiff's case is not supported by the ipse dixits of Dr Harbury, and, as I said, he provided no medico-legal report, nor was he called to give evidence. Dr Hopcroft was not called to give evidence to explain in greater fashion what he means by the second part of his opinion, which I quoted. Dr Posel was not required by the Plaintiff for cross-examination.

73. The outcome of my findings is extremely unusual in the Coal Miner’s Worker's Compensation List, but that is because the Plaintiff's case has been very poorly prepared. Legal practitioners must realise that sometimes it is necessary to call medical practitioners to give evidence. For example, Professor Ghabrial, according to the Plaintiff, was retained in order to provide him with a second opinion as to the causation of his knee condition. Professor Ghabrial does not provide any such opinion. He is completely silent on the question of causation. If he were asked, he would no doubt prepare a report. The lawyers must learn to apply the law and not what they think the law is. Concentrating on "nature and conditions of employment" serves no purpose. Concentrating on injury and disease, and being able to prove how they cause, for example, the need for total knee replacement, is what the issue before the Court is. The Plaintiff bears the onus of proof, and the Plaintiff has failed to discharge the onus of proof.

74. For those reasons, I order that there be an award for the Defendants.

Decision last updated: 10 July 2023