Jurd v Elcom Collieries Pty Ltd

[2017] NSWDC 42

District Court

New South Wales

Medium Neutral Citation:

Jurd v Elcom Collieries Pty Ltd & Ors [2017] NSWDC 42

Hearing dates:

8-9 February 2017

Date of orders:

10 February 2017

Decision date:

10 February 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff against the fourth defendant for $8,599.50 for 10% loss of efficient use of the right foot

 

Awards for the plaintiff against the eighth defendant as follows:
$7,144.20 for 13.5% impairment of the neck
$10,716.30 for 13.5% impairment of the back
$21,168.00 for 20% loss of efficient use of right arm at or above the elbow
$13,395.38 for 13.5% loss of efficient use of left leg at or above the knee
$24,806.25 for 25% loss of efficient use of the right leg at or above the knee
$2,278.30 for 3% loss of efficient use of the right hand
$26,400 under s 67

 

Order the eighth defendant to pay the plaintiff’s expenses under s 60

 

Awards for the first, second, third, fifth, sixth and seventh defendants

 Order the fourth and eighth defendants to pay the plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – COAL MINER – Claims for weekly payments, hospital and medical expenses, and lump sum compensation – Degenerative disease of neck, back, right arm, left leg, right leg and right hand

Legislation Cited:

Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Maxwell Bryan Jurd (Plaintiff)
Elcom Collieries Pty Ltd (First Defendant)
Coal & Allied Operations Pty Ltd (Second Defendant)
Hunter Valley Energy Coal Pty Ltd (Third Defendant)
JVUM Pty Ltd (Fourth Defendant)
Wambo Coal Pty Ltd (Fifth Defendant)
Walters Constructions Pty Ltd (Sixth Defendant)
Centennial Mannering Pty Ltd (Seventh Defendant)
Centennial Northern Mining Services Pty Ltd (Eighth Defendant)

Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr B Odling (Defendant)

  Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ590/15

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Maxwell Bryan Jurd, claims lump sum compensation under s 66 of the Worker's Compensation Act 1987 for 25% impairment of his neck, 27.5% impairment of his back, 20% loss of efficient use of his right arm at or above the elbow, 25% permanent loss of efficient use of his right leg at or above the knee, 35% loss of efficient use of his left leg at or above the knee, 12.5% loss of efficient use of his right hand and 15% loss of efficient use of his right foot. He also claims a lump sum of under s 67 for pain and suffering, anxiety and distress resulting from those impairments and losses. He also seeks a general order under s 60.

2. The plaintiff has joined eight defendants. Those were his employers during his period of employment in the coal mining industry of New South Wales. The plaintiff commenced work as a coal miner with the first defendant on 15 January 1973. He last worked in the coal mining industry for the eighth defendant sometime in July 2014. The evidence does not disclose the exact date at which the plaintiff was working at the Newstan Colliery operated by the eighth defendant, which closed on 1 August 2014. The plaintiff accepted a redundancy package when that pit closed. However, he had stopped working approximately a fortnight beforehand and was in receipt of weekly payments of compensation at the time that the Newstan Colliery closed. The plaintiff has been in receipt of weekly payments of compensation since that time.

3. As one could expect, the plaintiff has reported a large number of injuries over his period of service in the coal mining industry between 1973 and 2014, a period of 40 years. From the medical evidence I have read, many of the injuries which have been the subject of evidence are completely irrelevant to the long-term problems that the plaintiff has experienced. Despite the fact that the plaintiff has joined every employer that he has had in the coal mining industry, he adduced no evidence of any injury with a number of them. For example, his first employer in the coal mining industry was the first defendant, Elcom Collieries Pty Ltd, by whom he was employed as an apprentice fitter between 15 January 1973 and 12 December 1975. He gave no evidence of any injury during that period of time. When I asked him if it were correct that he had sustained no injury there, he said that there was none, but for a cut, I believe to a finger, which is completely irrelevant.

4. I must decry the joining of parties to proceedings when there is no evidence of any injury in the employment, and where for example there is no symptom experienced of some complaint which is alleged is due to the "nature and conditions of the employment", terminology which I have been constantly decrying for the last 22 years. If people wish to allege microtraumata they may do so, but the better view is that "nature and conditions", by which is meant the type of work that a worker performs constantly for an employer or employers over a number of years, generates a disease of gradual onset.

Right foot

5. The medical evidence before me starts with the plaintiff having his right foot and ankle X-rayed at the request of a general practitioner at Wyee on 24 April 2002. The plaintiff told me that on 23 April 2002 he injured his right foot and ankle when he was roof bolting and the top part of a dolly broke off and fell onto his right foot and ankle. The radiological investigation tells me that there was soft tissue swelling over the medial malleolus. However, there was no fracture or joint diastasis discovered on X-ray. The plaintiff has some continuing symptoms in his foot. Dr Roger Rowe, who has been seeing the plaintiff since 7 August 2014 for Coal Mines Insurance, the insurer for all coal mining companies. Dr Rowe thought that the plaintiff had a permanent loss of efficient use of his right foot of 10% due entirely to the effect of the work injury on 23 April 2002. I am prepared to accept that opinion of Dr Rowe.

6. The assessments of the extent of the loss of efficient use of the plaintiff's right foot are 15% from Professor Ghabrial, 20% from Dr Hopcroft, 25% from Dr Isaacs, 10% from Dr Rowe, and nil from Dr Millons. Professor Ghabrial on my reading of his report following upon his examination on 1 June 2015, appears to attribute the loss of the efficient use of the plaintiff's right foot to the condition of hallux rigidus which is Latin for a stiff great toe. Dr Hopcroft's diagnosis is not clear to me from his report, but Dr Isaacs clearly thought that it was the condition of the plaintiff's great right toe, that is the hallux rigidus that is the cause of the loss of efficient use of his right foot. With the utmost respect to Professor Ghabrial and Dr Isaacs, it appears to be more probable than not that if the plaintiff has a stiff great toe on the right foot it is the consequences of chronic gout than it is to any work injury. There is no history of the plaintiff striking his great right toe or having it constricted or confined in any way, or permanently bent in any way as the plaintiff describes it to be. However, I am happy to accept the diagnosis made by Dr Rowe and the extent of the loss of efficient use of the right foot determined by him.

Left knee condition

7. The next piece of medical evidence concerns the plaintiff's left knee. Many "frank injuries" relating to the plaintiff's left knee were led in evidence, but only some of them appear to have been of any great moment. Whilst one can understand that Coal Mines Insurance may want every injury to be reported, a consequence of that is every minor occurrence becomes a documented event which can be led at a hearing such as was conducted before me where every minor event that occurred in the coal mines over a period of decades is adduced and said to be relevant to the ultimate loss of function of a body part.

8. On 22 March 2010, the plaintiff consulted Dr Christopher Lloyd who appears to be one of a number of doctors practicing at the Lake Munmorah Doctors Surgery on the Pacific Highway, Lake Munmorah. The notes made by Dr Lloyd commence thus: "Multiple injuries to left knee at work. Has been mentioned to work. Left knee problems for a few years. Further flare-up this week following turn at work – 19 March." The plaintiff told me of an incident at the Mannering Colliery which was then being conducted by the Centennial Mannering Pty Ltd, the seventh defendant. On 19 March 2010, the plaintiff was getting into a grader when his foot slipped off the wheel and he twisted his left knee. The plaintiff told me that he strained his knee and that it "came up" meaning that there was an effusion and that he experienced "general soreness".

9. On 22 March 2010, Dr Lloyd referred the plaintiff to Dr Anthony Burnekis, an orthopaedic surgeon practicing at both Kanwal and Erina Fair on the Central Coast. Prior to the plaintiff’s seeing Dr Burnekis he underwent a number of radiological investigations. Plain X-ray was performed on 25 March 2010. That is reported as showing minor medial compartment joint space narrowing. The radiologist, Dr Philip Herald concluded that there was "minimal medial compartment degenerative change". I should point out that such a radiological appearance would not have been caused by an event happening on 19 March 2010 because for such a radiological appearance to show up, some six months at least must elapse between an injurious event and such a radiological demonstration of pathology. In other words, the plaintiff's left knee medial compartment had been degenerate for some time prior to 19 March 2010, perhaps due to earlier injuries or perhaps due to the type of work that the plaintiff performed as a coal miner for a number of years until that time. An MRI of the left knee was performed on the 31 March 2010 and that is said to show foci of intermediate to high grade chondromalacia affecting the lateral tibial plateau and the lateral femoral condyle. There was also thought to be a mild anterior horn medial meniscal extrusion but it was not torn. There is also thought that there is an intermediate grade sprain of the anterior cruciate ligament.

10. Dr Burnekis saw the plaintiff on 1 April 2010. Perhaps because of the date of the examination, the Doctor was unable to reach a conclusion as to the diagnosis. However, he recommended a trial of three months of physiotherapy to work on stabilisation of the patellofemoral joint. That, unfortunately, did not alleviate the plaintiff's condition.

11. He was then referred to Dr Peter Mitchell, an orthopaedic surgeon under whose care the plaintiff remained until, as I understand it, 2014 when Dr Mitchell retired. In a report of 21 July 2010, Dr Mitchell expressed the view that the plaintiff's symptoms were probably coming from his patella, the doctor having seen the radiological investigations which he thought showed chondromalacia, probably of the patella. Dr Mitchell then arranged for the plaintiff to undergo a CT scan of his left knee which was performed on 26 July 2010 and reported on the following day by Dr Yousaf. Unfortunately, Dr Yousaf did a straight CT scan with the plaintiff's knee extended. Dr Mitchell had desired a CT scan looking at the tracking of the plaintiff's knee cap rather than a straight X-ray with the knee extended. However, by 3 August 2010 the symptoms in the plaintiff's left knee had improved and the suggestion of active surgical intervention was put on hold.

12. Eventually the plaintiff was referred back to Dr Mitchell by Dr Tng of the Lake Munmorah Doctor's Surgery on 19 March 2013. For the purpose of that referral Dr Tng arranged for the plaintiff to undergo a MRI scan of his left knee which is said to demonstrate degenerative changes in the medial compartment and a tiny non-displaced tear of the inner free margin of the body of the medial meniscus. It would appear that the degenerative changes previously noted in the plaintiff's left knee had advanced somewhat. Dr Mitchell saw the plaintiff on 8 April 2013. He proposed an arthroscopy at the Newcastle Private Hospital. Initially that was scheduled to take place on 19 April 2013, but it was postponed because the plaintiff had some intercurrent medical condition.

13. In the meantime, Dr Mitchell noted that the plaintiff had been seen in Sydney by Dr Jim Powell, an orthopaedic surgeon who appears to have been thought by Dr Mitchell to have been an eminent colleague. It would appear that Dr Powell was qualified by CMI and his reports have not been put before me.

14. Eventually Dr Mitchell performed the arthroscopy on the plaintiff's left knee at the Newcastle Private Hospital on 17 May 2013. He noted grade I and grade II changes in the articular cartilage of the patella. There was also a degenerative medial meniscus with a small transverse tear which the doctor debrided. There were also degenerative changes in a localised area over the weight-bearing portion of the medial femoral condyle which were grade II in nature. There was a small cartilage flap which was debrided. The anterior cruciate ligament was found to be intact. Ten days after the arthroscopy Dr Mitchell prescribed physiotherapy.

15. On 17 January 2014 Dr Julieanne Miller of the Lake Munmorah Doctors Surgery referred the plaintiff back to see Dr Mitchell. Her referral letter informs me that the plaintiff had never really improved following the arthroscopy of 2013. The general practitioners had arranged for the plaintiff to have a further MRI of his left knee which was said to show a small radial tear of the posterior horn of the meniscus and also a loss of joint cartilage in the medial joint space. That led Dr Peter Mitchell to arrange for the plaintiff to be admitted to the Newcastle Private Hospital on 21 February 2014 where the doctor performed what he referred to in his report to the treating general practitioner as a "tidy up". In a letter to CMI, Dr Mitchell referred to this arthroscopy as his discovering a significant medial meniscal tear which he debrided. On 3 March 2014 the plaintiff was referred for further physiotherapy following upon that arthroscopy.

Neck conditions

16. In the meantime, the plaintiff had undergone a CT scan of his neck on 13 February 2014. The plaintiff told me of an incident at the Newstan Colliery operated by the eighth defendant on 14 January 2014. He was driving a shuttle car when he ran over a canche and was thrown up into the canopy of the shuttle car, striking his head and jarring his neck. However, the plaintiff had reported earlier neck injuries on 13 February 1987, 31 January 1991, 12 May 1992, but there is no evidence that they required the plaintiff to undergo any treatment for his neck. The radiologist performing the CT scan of the neck on 13 February 2014, Dr Makeham concluded thus:

"Multilevel degenerative changes throughout the cervical spine. Very severe foraminal stenosis on the right at C3/4 and on the left at C5/6 and C6/7 with possible impingement of the right C4 or left C6 or C7 nerve roots. On the left, there is moderate facet arthropathy at C4/5 and at C7/T1. On the right, there is moderate facet arthropathy at C4/5."

For present purposes, only the first sentence of that conclusion needs to be considered – multilevel degenerative changes throughout the cervical spine. The plaintiff because of his cervical compliant was referred by Dr Tng of Lake Munmorah Doctors Surgery to Dr Robert Kuru, an orthopaedic specialist at Warner's Bay specialising in spinal surgery. Dr Kuru's opinion was this:

"Max has a non-specific neck pain, presumably relating to his underlying degenerative disease. I have reassured him that his spine is stable and he can be active within the tolerance of his symptoms. I have recommended that he return to the physiotherapists to be given an isometric exercise program for his cervical spine. It is appropriate for him to continue to use simple analgesics as tolerated. In the absence of symptoms radiating into his limbs, I think it unlikely that interventional treatment will be reliably helpful for him."

The plaintiff told me that he was not happy with Dr Kuru. The exact reason is unclear. I note that the plaintiff told Dr Tng on 15 April 2014 that he "did not like Dr Kuru". The plaintiff asked for another opinion about his neck pain. It is hard to know whether the plaintiff's complaint was about Dr Kuru personally or about his opinion of his neck pain. Sometimes medical practitioners and their patients do not see eye to eye and a clash of personality can often cause the patient to doubt the correctness of the medical practitioner's diagnosis.

Treatment after retrenchment

17. Dr Tng referred his patient to Professor Ghabrial at Merewether. By the time Professor Ghabrial saw the plaintiff on 9 October 2014 the Newstan Colliery had closed down. The second and third paras of Professor Ghabrial's letter to Dr Tng are these:

"He had multiple injuries to his neck during the course of his employment. Ultimately that led to, what appears to be, lower cervical spondylosis with instability at L4/5 [sic, scil C4/5] segment associated with forward slip at that level.

Clinical assessment of his neck today suggested moderate muscle guarding with marked loss of movements, mainly toward the left side. He had very little in the form of affection in the extension of the neck. Neurological assessment of the upper limbs showed sensory changes in his hands which are most likely consistent with bilateral carpal tunnel compression of the median nerves."

I shall have more to say about his suggestion of the plaintiff’s suffering a bilateral carpal tunnel syndrome. The plaintiff went on to tell Professor Ghabrial about “increasing symptoms in his lower back”. On the medical evidence before me, that is the first time the plaintiff complained of problems in his lower back. This was after the pit shut on 1 August 2014.

18. As I earlier mentioned, the plaintiff first saw Dr Roger Rowe on 7 August 2014 and Dr Rowe provided a report dated 11 August 2014 stating the plaintiff only complained about his left knee. Dr Rowe has this history: "There was no history of any other accident or injury, sporting or motor vehicle accident and he said that he had not had any fractures." It is clear that the plaintiff did not complain to Dr Rowe about his neck but he had been complaining about his neck since at least 14 January 2014. The history is not correct. However it does raise a suspicion that some symptoms such as the symptoms in the lower back may have only arisen after the plaintiff was retrenched from the coal mining industry. However, that was not the subject of any cross examination of the plaintiff and I shall ignore it.

19. The plaintiff complained to Professor Ghabrial about his left knee and told Professor Ghabrial about being treated for it by Dr Mitchell. He also complained to Professor Ghabrial on 9 October 2014 about his right knee. On the medical evidence before me that is the first complaint about that body part. Professor Ghabrial arranged for some further investigations. They included X-rays and a CT scan of the plaintiff's lumbar spine. That is summed up by Dr Lewis, the radiologist, thus: "Degenerative change, mainly bony, at several levels as described." Those levels were L2/3, L3/4, L4/5 and L5/S1. There also were X-rays of both knees. The radiologist, Dr Andrew Solomons summed up that investigation in this fashion:

"There is slight reduction in the medial femorotibial compartment joint space bilaterally but joint space is more pronounced on the left than the right. The lateral femorotibial compartment and patellofemoral joint spaces bilaterally are persevered. No acute bony injury is evident."

One can validly deduce from that investigation that the plaintiff's right knee was heading down the same path as his left knee. Professor Ghabrial also arranged for X-rays and ultrasounds of each of the plaintiff's shoulders. Plain X-ray of the right shoulder showed a prominent osteophyte projecting inferiorly from the right humeral head in keeping with considerable osteoarthritis. The glenohumeral joint space was slightly reduced. Ultrasound of the right shoulder showed a mild painful bursal bunching noted at 75 degrees of abduction. The radiologist for this investigation, Dr Greg Solomons diagnosed mild right subacromial bursal thickening with the mild painful bunching at 75 degrees of abduction and right glenohumeral osteoarthrosis. In other words, the plaintiff's right shoulder was degenerate.

20. In his evidence, the plaintiff told me of an injury to his left shoulder on 31 January 1991, to his right shoulder on 13 February 1993, to his right shoulder on the 21 October 2008. Following up on those investigations, the plaintiff was reviewed by Professor Ghabrial on or about 13 November 2014. Consistent with the radiological investigation of the plaintiff's shoulders Professor Ghabrial then diagnosed osteoarthritis of the right shoulder, multiple level degenerative changes of the lumbar spine, mild to moderate osteoarthritis of the medial compartment of each knee, the left being sorely affected than the right and then the Professor expressed the view that it was highly likely that those problems were related to various injuries that the plaintiff had sustained in his employment in the coal mining industry.

21. Because of problems in his right shoulder in particular, the plaintiff has requested that this general practitioner, Dr Tng, to refer him to Dr Don Osborn, an orthopaedic surgeon specialising in surgery of the knee and the shoulder. The plaintiff told Dr Osborn that he had pain in his right shoulder for five years and that had slowly been getting worse. The plaintiff was not challenged about that history. Pain for five years would indicate that the pain came on a long time before the plaintiff left the coal mining industry. However, the fact that it was slowly getting worse since the plaintiff had left the coal mining industry leads to an inference that it might not be related to the type of work the plaintiff was doing as a coal miner. The plaintiff was not able to give Dr Osborn any history of a specific injury or accident that gave rise to his shoulder complaint. Dr Osborn was of the view that the plaintiff had osteoarthritis in his right shoulder. He suggested injections into the shoulder to try to ameliorate pain, but the only surgery which could be practiced was shoulder replacement which the plaintiff was not eager to undergo and Dr Osborn was very happy that he was not prepared to undergo a shoulder reconstruction at relatively young age.

22. The rest of medical evidence before me is essentially medico-legal. I have the assessments of the losses made by Professor Ghabrial. They are the same as are claimed in the Statement of Claim and were made by Professor Ghabrial following up on a medico-legal examination on 1 June 2015. The plaintiff's solicitor has also qualified Dr Hopcroft, who has seen the plaintiff on two occasions, 5 August 2015 and 18 January 2017. The plaintiff was also sent by the solicitors to see a Dr A.V.B. Issacs, an orthopaedic surgeon. The plaintiff was sent back by Coal Mines Insurance to see Dr Rowe and has also been sent to see Dr David Millons.

Awards that can not be made

23. The first point I should make clear is that it is an error of law for me to award more than is claimed and it is an error of law for me to award things which are not claimed. For example, although a 25% impairment of the neck is claimed there is a higher assessment from Dr Hopcroft. I have listed the items claimed in the Statement of Claim, but there are further claims advanced. Dr Isaacs diagnoses a 15% loss of efficient use of the plaintiff's left arm at or above the elbow, but no claim is made for the loss of the use of the left arm at or above the elbow. Dr Hopcroft diagnoses a 20% loss of efficient use of the plaintiff's hand following upon his examination of the plaintiff on 18 January 2017, but no loss is claimed of the left hand in the Statement of Claim.

24. The range of the assessments is, not unexpectedly, controversial. As Dr David Millons aptly said in one of his short reports of 26 August 2015: "I am not party to Professor Ghabrial's conclusions but, if tradition is anything to go by, the figures he quotes are likely to be considerably greater than mine."

Neck

25. As far as the neck is concerned, Professor Ghabrial diagnoses a 25% impairment. Dr Hopcroft puts the impairment at 30% and Dr Isaacs at 25%. Dr Rowe says that there is a 10% impairment of the neck, but deducts from that 3% due to the underlying degenerative condition. Dr Millons puts the impairment at 15%, but deducts from that 5% because of the underlying degenerative condition. The only diagnosis really made is of degenerative disease in the cervical spine. There is no real evidence of any discal lesion. Doing the best I can on the medical evidence before me, I accept that there is a15 % impairment of the neck. I am not greatly assisted by the doctors as to the extent of any deductible portion. None is mentioned by Professor Ghabrial, Dr Hopcroft or Dr Isaacs. Doing the best that I can, I believe that I should deduct the statutory 10% so that the plaintiff is entitled to an award for 13.5% for impairment of his neck.

Back

26. As far as the back is concerned, Professor Ghabrial diagnoses as 27.5% impairment, Dr Hopcroft and Dr Isaacs each diagnose a 25% impairment. Dr Rowe diagnoses a 10% impairment, but reduces that to 3% by taking off 7% as the deductible proportion and Dr Millons diagnoses only a 5% impairment, which in his view was wholly attributable to the underlying condition. Doing the best I can on the evidence, I accept a 15% impairment on the back due to widespread degenerative disease in the lower back. I deduct from it the 10% statutory proportion for the deduction due to the underlying condition because I am not impressed by the methodology of either Dr Rowe or Dr Millons in this regard for this item.

Right arm

27. As far as the right arm is concerned, Professor Ghabrial diagnoses a 20% loss, Dr Hopcroft and Dr Isaacs each diagnose a 30% loss. Dr Rowe and Dr Millons each accepts a 20% loss, but those two practitioners would deduct one quarter because of underlying degenerative condition. Bearing in mind the frank injuries the plaintiff has experienced and the opinion of all the doctors, I am satisfied that the plaintiff has a 20% loss of efficient use of his right arm, at or above the elbow and that is wholly to due to both the injuries that the plaintiff sustained in the course of his employment as a coal miner and also due to the work that he has done as a coal miner over 40 years.

Right leg

28. The diagnoses of loss of efficient use of the plaintiff's right leg are 25% from Professor Ghabrial, Dr Hopcroft and Dr Isaacs, nil from Dr Rowe and 5% from Dr Millons, which he reduces to nil because he believed it to be wholly due to the underlying condition. As I said, the plaintiff has in his right knee the same condition as he has in his left knee, but it is as advanced as is the condition in the plaintiff's left knee. Doing the best I can on the medical evidence, I accept that there is a 15% loss of efficient use of the plaintiff's right leg at or above the knee, but I believe that some deduction is called for and I would only allow for the 10% reduction provided for by the statute and therefore the plaintiff is entitled to an award for 13.5% loss of efficient use of his right leg at or above the knee.

Left leg

29. As far as far as the left leg is concerned, Professor Ghabrial diagnoses a 35% loss of efficient use of the left leg at or above the knee as do Dr Hopcroft and Dr Isaacs. Dr Rowe says that the loss is 20% wholly due to work injuries and Dr Millons says that it is 15%, but 5% of that 15% must be deducted because of an underlying condition. I have reached the view that the plaintiff has a 25% loss of efficient use of his left leg at or above the knee and I accept the opinion of Dr Rowe that it is wholly due to various injuries that the plaintiff has had in the course of his employment together with the effects of his work as a coal miner over 40 years.

Right hand

30. I have not yet made any finding in respect to the plaintiff's claim in respect of his right hand. The plaintiff claims 12.5% loss of efficient use of his right hand. That is Professor Ghabrial's assessment. Each of Dr Hopcroft and Dr Isaac put the loss at 15%. Dr Rowe and Dr Millons put it at 5%, but in Dr Millons’ view it is wholly due to an underlying condition. Dr Rowe would reduce the loss to 3% because of an underlying condition. There are various diagnoses for the problem in the plaintiff's right hand. I am not persuaded on the evidence that he had a carpal tunnel syndrome in his right hand, let alone in his left hand. The best the medical evidence suggests is that the plaintiff may have some problems in the distribution of the radial nerve, probably because of some impingement or entrapment in the neck. I accept the view of Dr Rowe in this regard. I accept that the plaintiff has a 5% loss of efficient use of his right hand, but that should be reduced to 3% because of an underlying condition which might be an underlying condition in the cervical spine. The aetiology of the condition in the right hand is in my view the same as the aetiology of the neck complaint.

Disease process

31. On my view of the medical evidence the plaintiff's impairment of his neck and back and the loss of efficient use of each of his right arm, right leg, left leg and right hand are due perhaps to frank injuries, but also due to the type of work the plaintiff has been performing over many years as a coal miner. Essentially these are degenerative diseases of gradual onset and the liability for them must rest with the last employer who employed the plaintiff in conditions to which the nature of those diseases or the aggravation et cetera of them is due, which is the last employer, the eighth defendant. The day that the plaintiff last worked as a coal miner is not clear. The best that I can do is that it was a fortnight prior to 1 August 2014, which means sometime in July 2014.

Pain and suffering

32. In respect of the impairment of his neck and back and the loss of efficient use in his right arm, right leg, left leg and right hand the plaintiff is entitled to a lump sum under s67 for pain and suffering, anxiety and distress resulting from those impairments and those losses. The plaintiff's life expectancy currently is 23.87 years, roughly 24 years. Some discount must be placed on that for the vicissitudes of life because the plaintiff has undergone surgery for two lots of bowel cancer and is to undergo laparoscopy soon to see if there has been any recurrence. He has also undergone radical prostatectomy because of cancer of the prostate. Such conditions normally attenuate life expectancy. The plaintiff also suffers from high cholesterol and that also attenuates life expectancy. However, I can expect the plaintiff to live with the symptoms he has now for some 20 years into the future and he has suffered with a number of them for at least five years into the past. 25 years is still a considerable period of time in which to suffer pain in the neck and back and each knee and the right upper limb.

33. The plaintiff is now 61 years of age. But for injuries and the closure of his pit one might have expected him to work on for a further six years. However, what has happened is the plaintiff's "retirement", even the enforced early retirement, had been blighted by the symptoms. The plaintiff was a keen surfer, a keen swimmer in the ocean and that has now denied it to him. He has difficulty because of the problem in his right shoulder with swimming freestyle, or Australian crawl, more properly described. He can swim in Lake Macquarie and other lakes on the Central Coast, but not freestyle. He was a keen boat fisherman and a keen beach fisherman. Beach fishing is now beyond him and his ability to fish from a boat is limited as his ability to cast is limited. The plaintiff was a keen pig hunter, but I accept that his enjoyment of that "sport" has been greatly attenuated because he cannot keep up with his dogs while riding a quad bike, but now rides a small six-wheel drive vehicle, but that does not have the mobility of a quad bike. The plaintiff's two quad bikes are now driven by his sons with the plaintiff following a long way behind in his six-wheel drive and he has been unable to discharge a rifle to put down the quarry. Essentially the plaintiff still participates to keep up with his sons and perhaps to enjoy their company.

34. I accept that the plaintiff's symptoms have had a major effect on the plaintiff to date and will continue to do so for the next twenty years. Doing the best I can, I believe that this case stands in proportion to the most extreme case in a ratio of three is to ten. That entitles the plaintiff to a lump sum of compensation for the injuries which are deemed to have occurred in July 2014 of $26,400. The plaintiff is also entitled to a general continuing order for payment of his s60 expenses by the eighth defendant.

35. Any further reasons for judgement required?

O'ROURKE: Not from the plaintiff your Honour.

HIS HONOUR: Ms Palamara?

PALAMARA: No your Honour only in respect of costs, I think--

HIS HONOUR: Oh right, I have not made any orders yet.

PALAMARA: Yes, your Honour.

36. HIS HONOUR: I make an award for the plaintiff against the fourth defendant for $8,599.50 for 10% loss of efficient use of the right foot, that injury occurring on 23 April 2002. I make awards for the plaintiff against the eighth defendant for:

$7,144.20 for 13.5% impairment of the neck.

$10,716.30 for 13.5% impairment of the back.

$21,168 for 20% loss of efficient use of right arm at or above the elbow.

$13,395.38 for 13.5% loss of efficient use of the left leg at or above the knee.

$24,806.25 for 25% loss of efficient use of the right leg at or above the knee.

$2,278.30 for 3% loss of efficient use of the right hand.

Deemed date of injury for each of these awards July 2014.

I make an award for the plaintiff against the eighth defendant for $26,400 under s 67. I order the eighth defendant to pay the plaintiff's expenses under s 60, that is a continuing order.

37. I make awards for the first, second, third, fifth, sixth and seventh defendants, I order the fourth and eighth defendants to pay the plaintiff's costs. The plaintiff's costs are not to include the cost of the claim for weekly payments of compensation, the claim for loss of sex organs, the cost of the second amended statement of claim and the claims made against the first, second, third, fifth, sixth and seventh defendants.

Any other orders sought?

PALAMARA: No your Honour

O'ROURKE: No your Honour

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Decision last updated: 10 March 2017