Kelso v Oceanic Coal Australia Limited (West Wallsend Colliery) - [2014] NSWDC 296

District Court

New South Wales

Medium Neutral Citation: Kelso v Oceanic Coal Australia Limited (West Wallsend Colliery) [2014] NSWDC 296
Hearing dates: 10 September 2014; 5 – 6 November 2014
Decision date: 07 November 2014
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Award for the plaintiff for $37,044 for 40% loss of efficient use of his left leg below the knee
Award for the plaintiff for $13,240 for pain and suffering resulting from such loss
General order under s 60 for treatment of the plaintiff's left ankle condition
Defendant to pay the plaintiff's costs
Catchwords: WORKERS COMPENSATION – Coal miners – Desirability of calling expert medical evidence in a factually difficult matter
Legislation Cited: Workers Compensation Act 1987
Cases Cited: Rodios v Trefle (1937) 54 W.N. (NSW) 197; [1937] WCR 290
Texts Cited: C H Leonard, Concise Grey's Anatomy (16th ed 1983, Omega Books Ltd)
J E Schmidt, Attorneys' Dictionary of Medicine, (Release No 26, February 1993, Matthew Bender)
Category: Principal judgment
Parties: Arthur James Kelso (Plaintiff)
Coal Australia Limited (West Wallsend Colliery) (Defendant)
Representation:
Counsel:
Mr P O’Rourke (Plaintiff)
Mr D Stanton (Defendant)
Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): RJ501/13

Judgment

Ex tempore

The plaintiff, Mr Arthur James Kelso of Lambton, was a coal miner. He claims a lump sum under s 66 of the Workers Compensation Act 1987 ("the Act"), as applicable to coal miners, for 45% of loss of use of his left leg below the knee and a consequential lump sum for pain and suffering pursuant to s 67 of that Act. He also claims a general order for the payment of his expenses under s 60.
The plaintiff relies upon an injury which is alleged to have occurred on 26 September 2006 at the West Wallsend Colliery when the plaintiff slipped on a length of poly pipe in the course of his employment injuring his left ankle. It is alleged in the statement of claim that the injury to the plaintiff's left ankle ultimately led to arthrodesis of his left ankle.
Liability for the compensability of the plaintiff's left ankle condition is hotly contested. The plaintiff stopped working on 5 November 2007 and has been in receipt of workers compensation payments since that time. However, that compensation appears to be being paid to the plaintiff on account of a condition of his right ankle. Hence there is no claim for weekly payments in the statement of claim.
The case is not only interesting, both factually and medically, but is also complicated. Ideally, each party ought to have called a medical practitioner to give evidence but the parties elected not to do so and left it to me to sort out a difficult medical problem. The medical problem can be seen by the formulation as to liability made by the plaintiff's treating orthopaedic surgeon, Dr David Nicholson, whose particular specialty is surgery of the foot and ankle. In a letter addressed to another orthopaedic surgeon, who referred the plaintiff to him, Dr Nicholson said this:

"Pete, I suspect that what has happened to Arthur is that when he injured his ankle in 2006 he has actually sustained an acute rupture of his tibialis posterior tendon. I think he was at risk of this happening because of his valgus hind feet if the alignment of his right foot is any indication. I think subsequently to this he has gone on to develop an increased planovalgus deformity. Associated with this, the foot has started to impinge on the distal end of the fibula and the fracture of his distil fibula actually represents a stress fracture rather than a traumatic fracture as he certainly hasn't had any trauma to this ankle. I think that this also explains why he is still hot on bone scan. There is a lot of calcification around it and the fracture line is still visible. He has also gone on to develop a valgus deformity of his ankle which gives him a grade 4 classification of tibialis posterior tendon dysfunction."

It has been left to me to determine whether this "suspicion" of Dr Nicholson be correct.
The plaintiff was born on 2 November 1954. He has only recently turned 60. He left school at the age of 16 and I infer that he entered the workforce in 1971. He started working at the Newcastle Abattoirs where he was to become a slaughterman. In either 1979 or 1980 he commenced working at the West Wallsend Colliery at which he worked throughout his coal mining career until stopping work on 5 November 2007. One can see that he was a coal miner for at least a quarter of a century. During the whole of his mining career he worked at the West Wallsend Colliery but there were a number of different employers of him at the colliery over the years.
On 26 September 2006 the plaintiff was working at either main gate 32 or main gate 34. He was working at the coal face on that day. During the course of his work he was obliged to walk on a tractor road. He needed to walk through a hole which had in it mud and water. In the bottom of the hole in the road was a length of poly pipe which had been flattened by having wheeled vehicles travel over it. According to the plaintiff the poly pipe was under the mud within the hole. He slid. His left ankle slid from under him to his left; that is, his left leg slid away from the centre of his body which would have placed stretching stress on the lateral tendons of his left ankle and foot. The plaintiff also said that he twisted his ankle.
He felt pain in his ankle "around the joint area". He said that was towards the outside of the ankle, again on the lateral side. He told me that the pain was severe. Nevertheless, he kept on working, continued walking and limped towards the coal face where he was required to work. He noticed that his ankle was swelling up. The plaintiff went to the deputy and reported the injury to him and later in a crib room during the shift a form was filled out for him. When he was in the crib room he took his boot off and realised the extent of the swelling of his left ankle.
According to exhibit A this incident occurred not on 26 September 2006 as deposed to in a leading fashion by the plaintiff and as pleaded in the statement of claim but on the following day, 27 September 2006 at 11.50am. The incident details recorded in exhibit A are consistent with the plaintiff's description of how the incident occurred. In order to make the documentary evidence, which is likely to be accurate, conform with the pleadings I have amended the statement of claim by changing the date of the injury to “on or about 26 September 2006.”
The plaintiff completed that shift and indeed worked subsequent shifts at the West Wallsend Colliery. He did not seek any medical treatment until 30 October 2006, over a month later. He sought that care from doctors at the Adamstown Clinic. The plaintiff had been attending at the Adamstown Clinic since 20 November 2003. He initially presented there for continuing problems with his right shoulder. There are a number of different complaints between that time and 30 October 2006 but none of them concern the plaintiff's left ankle.
The plaintiff deposed to consulting Dr Przybylski at the Adamstown Clinic on 30 October 2006 but it is clear from exhibit B that the plaintiff only saw Dr Przybylski once and that was on 13 December 2006. However, the hand writing in the clinical notes of the Adamstown Clinic clearly indicates that he saw other doctors on three other occasions. As I said, the first attendance at the Adamstown Clinic was on 30 October 2006 and the notes recorded are these:

"Twisted left ankle on plastic pipe in mud four weeks ago at work. Okay to keep working, but noted to be swollen lateral aspect of ankle the next day - recurrent pain since especially with plantarflexion and dorsiflexion. On examination mild swelling of anterolateral ankle ligaments. Normal movements. Workers compensation two days. Noted flat feet. [Action] Presige 1 daily. [Another prescription indecipherable] Wear ankle support."

There was a further complaint on that day about the plaintiff's left great toe but the diagnosis made was of an early plantar wart which is currently irrelevant.

It can be seen, therefore, that the plaintiff had initially noted swelling on the lateral aspect of his ankle and that he had an ongoing problem with both plantarflexion and dorsiflexion. On examination the doctor thought that there was swelling of the anterolateral ankle ligaments although immediately prior to the word "anterolateral" appears to be the commencement of the word "lateral" which has been crossed out. The reference to "workers compensation two days" is clearly a reference to the issuing of a certificate of incapacity for two days at that time.
The plaintiff returned to the Adamstown Clinic on 15 November 2006 after having injured his right hand at work when his hand was struck by a piece of drill steel, a bit which was four inches long and weighed approximately 31 kilograms. The plaintiff was sent for an X-ray. He returned to the Adamstown Clinic on the following day and the X-ray was noted to be "clear" which indicates that there was no bony abnormality. The doctor's notes then raise the possibility as to whether the plaintiff would need physiotherapy in order to return to work using his right hand.
The plaintiff returned to the Adamstown Clinic on 20 November 2006 when his grip strength was tested and was noted to be improving and the notes indicate that the plaintiff was keen to return to work and that he was "feeling okay".
The inference I draw is that between 15 and 20 November 2006 the plaintiff was incapacitated for work because of his hand injury. The only significance of those entries is, firstly, that it represents a further period of time off work when the plaintiff would have been resting. From what I shall very shortly state, it appears that he was still suffering symptoms in his left ankle but made no complaint about it. This suggests that the plaintiff did not complain to the doctor about everything that may have been bothering him in mid November 2006.
The plaintiff returned to the Adamstown Clinic on 13 December 2006 when he was seen by Dr Przybylski. In exhibit B Dr Przybylski provides a type-written version of what he did on that day but does not set out the history he recorded and his findings on examination, which are important. The hand written notes, exhibit O, say this:

"Ongoing problem with left foot/ankle since twisting injury in October; now swelling of medial aspect of ankle. Aggravated by work. On examination left ankle dorsiflexion 90 degrees; plantarflexion 40 degrees; soft tissue injury plus plus medial aspect of ankle; mild swelling laterally."

The doctor then ordered an X-ray, again prescribed Presige - although the correct spelling might be Prexige - recommended ankle guard or strapping and wrote a workers compensation certificate for three days off work. In exhibit B the doctor says that there was initially swelling of the lateral aspect of the ankle and now there was swelling medially. Again, there is a finding about the lateral aspect of the ankle as well as the medial.
Part of exhibit B is the certificate of Dr Przybylski certifying the plaintiff as unfit from 13 to 15 December 2006 inclusive. On 15 December 2006 the plaintiff returned to the Adamstown Clinic and saw a different medical practitioner. The notes recorded are these:

"Left ankle pain much better with Presige. X-ray - no significant injury. [Action] Presige for two weeks then pro re nata [as required]. See podiatrist re orthotics. Ankle support strapping."

That medical practitioner did not set out any findings but clearly there must have been some continuing signs or symptoms for the doctor to have suggested that the plaintiff needed to take medication for a further two weeks.

The X-ray to which the last medical practitioner referred to was made by Dr Mark Scott on 14 December 2006. The X-ray report is exhibit J. Doctor Scott records this: "There is some irregularity of the tip of the medial malleolus suspicious of an old injury. There is a small calcaneal spur present. There is some soft tissue swelling noted over the lateral malleolus." The finding of the calcaneal spur is irrelevant. There was some irregularity of the tip of the medial malleolus which Dr Scott suspected might be "old", otherwise all that the X-ray shows is soft tissue swelling over the lateral malleolus. Unfortunately the X-ray plates themselves do not appear to have been seen by any currently relevant medical practitioner, that is, in particular, they were not seen by Dr Nicholson nor were they seen by the doctors qualified in this case, Dr Trevor Best for the plaintiff and Dr Roger Rowe for the defendant. Doctor Nicholson, himself, only had drawn to his attention Dr Scott's report rather than the actual plates.
What is the significance of these findings of the medical practitioners in 2006, especially with regard to the thesis advanced by Dr Nicholson, his "suspicion"? A tendon is a cord of tough connective tissue which forms the end of a muscle and which connects the muscle to a bone. This is to say that the muscle tissue is not attached directly to a bone, instead the muscle tissue gradually merges with another kind of tissue, tendon tissue, which forms the attachment to the bone. I take that definition from Schmidt's "Attorneys' Dictionary of Medicine". The same work tells me this about the tibialis posterior muscle:

"A muscle of the back part of the leg. The upper end, the origin, is attached to the upper parts of the tibia and the fibula, the two bones of the leg. The lower end, the insertion, is attached to the underside of the foot, to most of the metatarsal and tarsal bones…it is supplied by the tibial nerve. Contraction of the muscle plantar flexes and inverts the foot. This is to say that the foot bends down (when the person is standing), moving the toes farther away from the knee. It also turns inward, so that the sole faces the foot or ankle. The muscle also helps to support the arches of the foot."

The same work goes on to tell me that another description of the same muscle is the tibialis posticus. The Concise Grey's Anatomy (16th ed) describes the muscle as the tibialis posticus and on p 102 of that work are two diagrams of the right knee and in that on the left-hand side can be seen the tibialis posticus or tibialis posterior muscle prior to its forming its tendon to connect it to the tarsal bones. At the ankle the tibialis posterior is on the medial side of the leg.

The plaintiff's description of how he slipped and twisted is consistent with, as I said earlier, a stretching of the musculature and tendons, that is ligaments, on the medial side of the ankle and the problems with plantarflexion noted early on are consistent with some damage to the tibialis posterior muscle and its tendon attachment to the metatarsal bones. It is unsurprising to me that if the plaintiff damaged the tibialis posterior tendon in this event he relies upon he would not only have damage on the medial side of the ankle but also on the lateral side but the damage on the lateral side might only be transient.
Doing the best I can it appears to me that the findings of the doctors, both about swelling medially and about plantarflexion and dorsiflexion, are consistent with possible injury to the plaintiff's tibialis posterior tendon, the lower tendon which is described as not the origin but the attachment to the tarsal bones. However, there is no further complaint recorded about the plaintiff's left ankle until 3 July 2010 and no further treatment of the plaintiff's left ankle until 2 May 2011. In the meantime, however, the plaintiff had a number of other difficulties.
On 1 May 2007 the plaintiff returned to the Adamstown Clinic with a flu like illness and the diagnosis made was of influenza and a certificate of unfitness for work was given to the plaintiff. How long he had off at that time I do not know.
On or shortly before 16 August 2007 the plaintiff attended upon Dr Patel at a practice at 192 Union Street, The Junction. The records made by Dr Patel at that practice are exhibit 2. The photocopying of them is very poor and many of the dates are obscured. As I said, the first attendance was in August 2007 either on 16 August when X-rays were taken or immediately prior thereto when they were ordered. Doctor Patel's notes are these:

"Old coal mine accident to right knee 1988 - crush injury leading to compensation case. On examination right lower limb shortened by half an inch. Tender right [indecipherable]. Flat feet. Right hip movement - tender. For X-rays."

The doctor then recorded the prescription of three medications which include a pain killer and an anti-inflammatory. Such medication might control not only symptoms in the right hip and right leg but also in the left ankle, if the plaintiff had any. That is to be borne in mind from this time onward: medication prescribed for other conditions might control symptoms in the plaintiff's left ankle.

The X-rays taken were of the plaintiff's lumbosacral spine, the plaintiff's pelvis and right hip and also the plaintiff's left ankle. They are reported by Dr Michele Roy whose radiological report is exhibit K. As far as the left ankle is concerned the report says this:

"No joint effusion. There is some degenerative change noted at the tibiotalar joint especially medially near the medial malleolus. No obvious zones of osteochondritis. There is osteoporosis. There is a large calcaneal spur as well as a small exostosis at the insertion of the Achilles tendon. There is deformity of the anterior portion of the calcaneum. Previous fracture?"

Again, it does not appear that the plate of that ankle X-ray has been made available to any of the specialists here involved. I do not know the extent of the findings of that ankle X-ray compared with that made by Dr Scott on 14 December 2006. Clearly, the calcaneal spur had grown as they do. There were degenerative changes at the tibiotalar joint medially near the medial malleolus which appears to me to be an area near the tibialis posterior tendon. Significantly, there was not reported to be any fracture of the fibula.

Why an X-ray of the left ankle was ordered by Dr Patel when he first saw the plaintiff is completely unclear. There must have been some complaint about it to Dr Patel for him to order such an X-ray when the plaintiff was complaining in particular about his right lower limb, that is, his whole right leg. One would think that the doctor, if he was only dealing with the right leg, would be more inclined to order an X-ray of the plaintiff's right ankle rather than his left. Doctor Patel was not called nor was his absence explained. The inference I must draw is there must have been some complaint at that time about the plaintiff's left ankle. Subsequently written in the records of Dr Patel at the practice at The Junction are indications the plaintiff was suffering from osteoarthritis in both his right hip, his lumbosacral spine and his left ankle.
The next attendance upon Dr Patel was on 24 August 2007. That was after the plaintiff sustained an injury to his right hip at work on 20 August 2007. There is no dispute about the occurrence of that injury. There is no significance in the fact the plaintiff's right hip was X-rayed on 16 August 2007 prior to the injury on 20 August 2007 because it is clear that the plaintiff had injured his hip at work on earlier occasions. There were earlier proceedings between the parties that were determined by my colleague Judge Ashford. They were commenced and heard in 2010. According to p 32 line 42 of the transcript of evidence before me the plaintiff suffered injuries to his hip on 7 February 2006, 26 February 2007, 20 August 2007 and also on 31 October 2007. There is no dispute that the condition of the plaintiff's left hip is compensable.
On 24 August 2007 Dr Patel recorded a history of the injury to the plaintiff's right hip on 20 August 2007. He noted tender and painful movement of the plaintiff's right hip and noted that it was hard for him to walk any long distance. The doctor noted the plaintiff felt better when he rested. The doctor thought the plaintiff needed an opinion from an orthopaedic surgeon and referred the plaintiff to Dr Richard Verheul [mistakenly spelt Verhille in the transcript].

The plaintiff returned to see Dr Patel on 7 September 2007. He noted on that occasion, as he did on 24 August 2007, that the attendance was because of a workers compensation claim. On 7 September the plaintiff complained of persistent pain in his right hip, right knee and right leg after working in the mine shaft 800 feet below the surface of the earth and when he was required to walk ten kilometres. The findings on examination have been obscured by the photocopying. The entry on the next page may refer to 7 September or it might refer to another attendance shortly thereafter. It records complaints about the plaintiff's right knee and also back pain but states the view that the pain was referred from the plaintiff's right hip. Again, there was discussion of the referral to Dr Verheul. There was discussion also about "pain management" and the plaintiff told the doctor that he was not very keen to undergo pain management. The doctor noted poor sleeping patterns as well. A certificate was issued on that occasion.
On 27 September 2007 the plaintiff returned to see Dr Patel with complaints of feeling unwell and there is reference to a "cold". The diagnosis made at the time was viraemia. Some medication was prescribed as well as the giving of a certificate for unfitness for work.
The plaintiff next attended upon Dr Patel on 5 November 2007, the day on which the plaintiff last worked. He gave a history of slipping in the mine on 31 October and again injuring his right hip, landing on his back. The plaintiff told the doctor that his back was "very painful". The doctor noted the plaintiff was in a lot of pain on that day. He went on to note that the insurer of the defendant wanted the plaintiff to see its orthopaedic surgeon in Sydney on 15 November 2007. The doctor thought the plaintiff needed new X-rays and again prescribed anti-inflammatories and again prescribed a medication to take at night, no doubt to help the plaintiff's sleeping patterns.
The plaintiff attended on four more occasions in November 2007, again concerning his right hip and his workers compensation claim concerning it. On the last occasion the doctor noted that he was required to complete a mortgage payment disability insurance form for Allianz, which is not the workers compensation insurer but presumably the insurance under some mortgage insurance scheme.
The next thing of significance that occurred is the performance of a right hip surgery by Dr Verheul on 8 December 2007. There is no report from Dr Verheul before me. The reference to the surgery can be found at transcript p 10 at line 29 and transcript p 37 at line 50 and p38 at line 1. An inference can be drawn, and I draw it, that Dr Verheul at no time obtained a history of an injury to the plaintiff's left ankle or recorded symptoms in his left ankle but clearly the plaintiff was being treated by that specialist for his hip injury.
It appears that in December 2006 Dr Patel left the practice at The Junction and joined a new practice, the Cardiff Medical Centre & Skin Cancer Clinic. The clinical records of that practice form exhibit 1. The plaintiff saw Dr Patel on 4 January 2008; that is, within a month of having hip replacement surgery. The relevant notes recorded by Dr Patel on 4 January 2008 are these:

"Now he is progressing well and does regular exercises, but finds very hard to walk around the block. Gave up his walking stick only recently. On examination right leg is normal length. Movements are back to normal. Prolonged discussion and reassurance about his not driving for six weeks. No exertion or activities. Going away for Harrington trip, for two weeks."

The plaintiff gave this evidence:

"A. …we go to Crescent Head every year for a week, me and the family, and my mates were going to Harrington after that. So I wasn't allowed to drive. So my wife dropped me off there. That's true, after the Crescent Head trip, okay? And I - that's true. I was with my mates. Now I remember. Yep.
Q. But, I mean, you were doing a bit of fishing, were you?
A. Yeah. Tailor. Tailor? It was flathead.
Q. Flathead. I see. From a boat or from the shore?
A. No, from the shore, sorry. We didn't have a boat…
Q. You had no problem with your ankle that prevented you from doing fishing, did you?
A. Well, I didn't go down on the rocks; I fished on the break wall. That's all good. Yeah. Even if I had trouble with it, I could still fish. Right?
Q. We'll come back to that in a moment. Are you saying your wife drove you from Crescent Head?
A. That's true.
Q. Did you fish at Crescent Head?
A. Possibly. I can't be sure that year. That year, I don't know.
Q. What sort of fishing did you do at Crescent Head?
A. Well, we fish in the river with the grandkids, catch little - I sit there and I put the bait on for them, yabbies, and they catch whiting, little whiting. They like it. I just sit there and put the bait on. Why?
Q. You need to walk to where you fish though, don't you?
A. Not easy. No, it's not easy on the sand with this ankle.
Q. What's difficult about the sand?
A. Because it's all uneven."

Clearly the plaintiff admitted to going to Crescent Head and then to Harrington. At Crescent Head he usually sat on the breakwater fishing for flathead. He was unsure as to whether that year he fished as he normally did at Crescent Head. If the plaintiff had a problem with ambulation at that time it appears to me it would probably have been more limited by the recent hip surgery and the restrictions placed on him by Dr Patel and Dr Verheul than by the condition of his left ankle.

The plaintiff was then cross-examined about whether his difficulty on the sand was because of his ankle or because of his bilateral knee condition, his lower back condition and his hip. However, all those questions were phrased and answered in the present tense rather than as at January 2008. On reflection I do not believe that any adverse finding or criticism can be made of the plaintiff for going to Crescent Head and Harrington in January 2008.
The plaintiff's next attendance upon Dr Patel was on 18 February 2008. This was described as a follow-up visit. Doctor Patel noted the right hip scar was well healed and that the plaintiff was walking well. Doctor Patel advised the plaintiff to continue with physiotherapy and completed the mortgage insurance form. He arranged to review the plaintiff in a month’s time. However, the plaintiff returned to Dr Patel two days later on 20 February. Doctor Patel noted, "post operation blues". He thought the plaintiff needed a pep talk and discussed with him different plans for treatment, no doubt of the blues, and suggested to him a fishing trip on a weekend, some medication and counselling. Doctor Patel noted that the plaintiff would think over his options and let him know how he would proceed.
The suggestion there made was by the doctor himself, that it would help the plaintiff's psyche if he went for a weekend away on another fishing trip. Whether the plaintiff did so I do not know: the evidence is completely unclear. However, it was suggested by the doctor and not by the plaintiff.
The plaintiff returned to see Dr Patel on 11 March 2008 complaining of finding it hard to put his wallet into his right hip pocket because it caused discomfort. The doctor noted the plaintiff was walking well and was continuing to improve. The movements of his right hip were getting back to normal with the help of physiotherapy which was carried out twice per week. Doctor Patel advised the plaintiff to continue with physiotherapy. The doctor noted at that time that he was to make a report for the plaintiff's solicitors, presumably in connection with the plaintiff's right hip injury.
The next attendance upon Dr Patel was on 1 April 2008. Again, the plaintiff needed an Allianz Insurance form completed and there is also reference perhaps to workers compensation documentation being completed. The doctor noted that the plaintiff was progressing well but he was not totally confident of going up and down steps. The doctor thought that the plaintiff required more physiotherapy. At the same time there was a discussion about industrial deafness.
The plaintiff returned to Dr Patel on 9 April, obviously after having had his hearing tested. On that occasion he made a complaint that he found it very hard to hear and he was worried about going deaf and that he wished to put in a claim for industrial deafness. It would appear that the complaint about finding it hard to hear was only made after the plaintiff's hearing was tested. The plaintiff returned to see Dr Patel on 14 May 2008. Doctor Patel's notes say this:

"Had a game of tennis last Monday and right knee got sore and swollen, due to game! Today his right knee has recovered well, and advised not to play tennis for a while."

It can be seen that the plaintiff had taken to playing tennis, probably contrary to medical advice, within six months of having his right hip replaced. He noticed that it exacerbated symptoms in the plaintiff's right knee which was the subject of an old workers compensation injury and which had been accepted as being compensable.

The defendant places much emphasis on the fact that this playing of tennis is inconsistent with the plaintiff’s having any ongoing problem with his left ankle. In a report of 24 October 2014 Dr Rowe expressed a view that it was highly unlikely that the plaintiff was able to play tennis on at least two occasions, seemingly without pain, instability or disability in the left ankle, if he had ongoing problems in it. “Highly unlikely”, of course, does not mean “impossible”. The extent to which the plaintiff played tennis on the occasion referred to in the notes of 14 May 2008 is unclear.
It was only social tennis and that might only have been for a short time. Again, the evidence is unclear. The plaintiff returned to Dr Patel on 21 May 2008. The notes recorded at that time are these:

"Has been playing tennis and golf against medical advice. He has been told again today that he should only do NON-impact exercise such as swimming, walking and perhaps pushbike riding only up to ten kilometres at the most. He is still getting soreness in right hip area at the operation site, even in the bed, and advised him to consult Dr Verheul and let him give him what he can do and what he cannot do. He is waiting to see [Dr Verheul] early June 2008."

The doctor then issued a "WorkCover certificate" for a further four weeks. It is clear from that entry that the plaintiff had played golf against medical advice and may again have played tennis against medical advice. I think it important to note that the plaintiff would not let medical restrictions interfere with his carrying out activities which he found enjoyable and which may have helped with his general health and fitness.

The plaintiff returned to Dr Patel on 11 August 2008 after having seen Dr Verheul. There was a discussion about the plaintiff's returning to work. Doctor Verheul had not certified the plaintiff as fit to return to work. Doctor Patel noted that it was difficult to explain to the plaintiff that he should go back to work on restricted duties. The plaintiff appeared to the doctor to be under stress and he noted that the plaintiff was going to see his lawyers on the following day and then he would return to see Dr Patel with whatever plans were made about returning to work. The plaintiff returned to Dr Patel on 18 June 2008. The doctor's notes say this:

"He is very tired from digging in his garden, as he is not allowed to do any sport from our side, so he doesn't do any more damage. Today he has agreed to contact mines office and find out what suitable duties he can do."

Again the plaintiff was cross-examined about his ability to dig in his garden as far as his left ankle was concerned and the plaintiff pointed out that he is right handed and used his right leg to push the shovel into the earth.

The plaintiff returned to see Dr Patel on 2 July 2008 and advised the doctor that he was told by the defendant that there were no suitable duties available for him at the West Wallsend Colliery. The doctor advised the plaintiff to continue with exercising but to be careful if he tried any strenuous work.
The plaintiff returned to see Dr Patel on 4 and 18 August 2008 but there was no cross-examination directed to those attendances. He attended again on Dr Patel on 15 September 2008 when the doctor recorded that the plaintiff was still tender over the right hip after lifting a 25 kilogram bag of salt which the plaintiff did to add salt to his swimming pool. Again, cross-examination was directed to the plaintiff’s lifting 25 kilogram bags of salt to add to his swimming pool and as to whether that was consistent with ongoing symptoms in the his left ankle. One wonders whether Dr Patel would recommend that activity to a plaintiff who was still within one year of total hip replacement.
The plaintiff returned to see Dr Patel on 25 September, 16 October and 1 December 2008 but there was no cross-examination of the plaintiff directed to those attendances. However, as on previous occasions, no complaint was made to Dr Patel of any problem in the plaintiff's left ankle.
On 23 December 2008 the plaintiff was seen by Dr Patel. The plaintiff complained of getting pains in his sciatic notch after sitting on a certain chair and the doctor advised him to sit on some other, more comfortable chair. The doctor noted the plaintiff was not happy with himself and there was a suggestion that the plaintiff may have developed post-operative depression. The doctor thought the plaintiff had a problem with self-esteem and recommended that he see a psychologist for help and also thought he required medication for his psychological condition. Whether the plaintiff took such medication or saw a psychologist, the evidence does not disclose, but one will see at the end of my recitation of facts that it is unlikely that the plaintiff did so.
The plaintiff returned to Dr Patel on 19 January 2009 concerning blurred vision, on 2 March 2009 about being extremely upset over delay in the hearing of one of his court cases and on 18 March 2009 about the condition of his shoulders. The plaintiff complained that for the last 12 months he had been having pains in each shoulder in the morning. The plaintiff's shoulder conditions are documented, accepted to be compensable and have resulted in a loss of efficient use of each of the plaintiff’s arms for which lump sum compensation has been paid.
The plaintiff attended upon Dr Patel on 24 March and 6 April about his shoulders, on 22 June 2009 about his right hip and on 31 August 2009 about his upcoming court case. On that occasion the doctor noted the plaintiff had ridden his pushbike in the previous week and "did well".
In the meantime the plaintiff had commenced going to another medical practice, the Broadmeadow Medical Centre, where one of the doctors was his sister-in-law, Dr Michelle Kelso. On 16 July 2009 the plaintiff saw Dr de Bruyn for bilateral otitis externa. There had been attendances at the same practice on 21 and 23 January 2008, presumably after the trip to Harrington when the doctor consulted Dr Gouter about stopping smoking and reducing the extent of his drinking. Again, there was no complaint recorded by Dr Gouter in January 2008 or by Dr de Bruyn in July 2009 about the plaintiff's left ankle. The plaintiff was only to return on one more occasion to see Dr Patel. That was on 16 August 2010.
On 13 July 2010 the plaintiff was seen by Dr Trevor Best at the request of his solicitors. The plaintiff gave a history of injuring his right ankle and Dr Best noted the X-ray of the left ankle taken on 16 August 2007 at the request of Dr Patel and Dr Best examined the plaintiff's left ankle. The history recorded by Dr Best about the plaintiff's left ankle is this:

"Mr Kelso is of the opinion that in 2006 he slipped in mud and twisted the left ankle at work. He applied ice to the ankle and has continued to have recurrent pain and swelling in the left ankle since that time. However, he reports that since he has ceased work he is better able to control his left ankle symptoms."

Dr Best's findings on examination were these:

"There is moderate restriction of left ankle movement with dorsiflexion restricted to 5 degrees in comparison to 15 degrees on the opposite ankle and plantarflexion is to 40 degrees in comparison to 50 degrees on the opposite ankle. There is a tendency of the left ankle to go into valgus deformity when standing and there is tenderness over the anterior capsule of the left ankle."

Again, the limitation of dorsiflexion is significant and appears to be much more greatly restricted than that recorded by Dr Przybylski on 13 December 2006 which would indicate deterioration with the passage of time, if the two be related. Doctor Best expressed this view:

"Mr Kelso has a mild permanent impairment in the left ankle at this time and I suggest that this is related to the nature and conditions of his work as a Coal miner and culminating in the episode at work in 2006. His left ankle condition is stable at present and does not need active treatment. However, it is likely to slowly deteriorate over time."

"Nature and conditions of work" is not a term of legal art nor is it a term of medical art. It, as I have been pointing out for the last 20 years, is much beloved by legal practitioners who fail to realise that the workers compensation legislation differentiates between injury and disease but says nothing about "nature and conditions of employment". Those who wish to quote dicta of members of the House of Lords should do so in full, as I have previously pointed out on innumerable occasions. Why Dr Best should have succumbed to using such terminology perhaps speaks of his joining the ranks of advocates for workers. I find little utility whatsoever in Dr Best's formulation of the plaintiff's condition which, it must be said, even lacks a diagnosis.

On 27 September 2010 the plaintiff saw Dr Roger Rowe for the defendant in connection with earlier proceedings in this Court. Doctor Rowe had last seen the plaintiff in December 2004. Necessarily that report is not before me because it pre-dates the injury now in question. Under the heading "Current Status" Dr Rowe records this about the plaintiff's left ankle:

"The left ankle swells at times. He thinks that he really strained the ankle when he slipped on a polyethylene pipe in the mud many years ago. He was treated with ice at the time and no other therapy was required."

Of course that history is inaccurate. The plaintiff may have treated the ankle with ice at the time but he certainly saw doctors, had an X-ray and received medication. Doctor Rowe did examine the plaintiff's left ankle. Of that part of his examination Dr Rowe said this:

"There was no evidence of specific pathology in the left ankle. An incidental finding was that of bilateral pes planus with pronation and this was worse on the left side than on the right side. This is a genetically determined condition. Both feet had restricted ankle and tarsal joint movement. There was no odema. There was no local calf muscle wasting."

Doctor Rowe did see the report of the plaintiff's left ankle X-ray dated 16 August 2007. The doctor went on to say this:

"The precise diagnosis of the left ankle problem is not clear as there is no recent radiological assessment. On the basis of my examination it is considered that there was probably early degenerative change in the ankle secondary to constitutionally determined flat feet which is worse on the left side. The strain that was reported at work is considered to be of temporary significance only. It is unlikely that this strain is contributing in any way to the current status of his left ankle."

I hazard this observation about that comment. The plaintiff clearly had degenerative changes in his left ankle shown by the X-ray of 16 August 2007. The doctor himself comments that that X-ray shows "some deformity of uncertain origin". The doctor must be referring there to the deformity of the anterior portion of the calcaneum and to the suggestion made by Dr Roy, the radiologist who reported on the X-rays of 16 August 2007, about the possibility of a previous fracture. The doctor could not determine what was the nature of the deformity based on the sparse material that he had. A question, of course, arises as to why only the plaintiff's left ankle should have been X-rayed and subject of symptoms when the condition of pes planus or flat feet is constitutional and bilateral.

Doctor Rowe went on in a supplementary opinion to express a view that the plaintiff had lost 10% of the use of the left leg below the knee but said that there was "no convincing evidence to relate this to his employment in the coal mining industry." There is now, of course, more known about the condition of the plaintiff's left ankle.
It is clear that the plaintiff complained to both Dr Best and Dr Rowe about his left ankle. Those doctors were seeing the plaintiff for the purposes of litigation in this Court. The plaintiff, therefore, must have complained to his solicitors and he was complaining to Dr Best and Dr Rowe about his left ankle.
The evidence before me discloses the plaintiff commenced proceedings against the current defendant for compensation in respect of a number of injuries that were heard in 2010 by Judge Ashford. The plaintiff accepted that he told his solicitors to discontinue the claim in respect of his ankle. It was suggested to the plaintiff that he did not have any problem in his left ankle and that was denied. The questions put to the plaintiff about the proceedings in 2010 were somewhat inaccurate. The proceedings bore matter number RJ738 of 2010 but were in fact heard on 14 December 2011. Exhibit 6 before me shows that. That is a transcript of the evidence given by the plaintiff.
Doctor Nicholson carried out a triple arthrodesis of the plaintiff's left ankle on 25 July 2011. As I shall set out in a later part of this judgment, the plaintiff was still recovering from the effects of that surgery at the time he gave evidence before her Honour and one can understand his claim in respect of lump sum compensation for the ankle being withdrawn in such circumstances, as his condition would not have been stable and capable of final assessment for the purposes of s 66 of the Act.
However, it is significant that the plaintiff must have complained to his solicitors about his left ankle prior to their commencing the proceedings in 2010. If, as suggested by the defendant, in essence the allegation of ongoing symptoms from 2006 to 2011 is a recent invention, it is rebutted to an extent by the complaint the plaintiff made to his solicitors which caused them to plead the ankle injury in the proceedings in 2010 and by the complaints that are recorded by Dr Best and Dr Rowe.
Shortly before seeing Dr Best on 13 July 2010 the plaintiff was seen for the last time by Dr Verheul concerning his right hip. That consultation was on 30 June 2010. Dr Verheul gave the plaintiff a clearance, I infer, to return to work at his final examination of the plaintiff. That was what caused the plaintiff to attend upon Dr Patel on 16 August 2010 when the plaintiff was given a medical certificate by Dr Patel for "his lower limbs". It is to be noted it was not given for his right hip or right leg but for his "lower limbs". That would indicate it was given in respect of both the left and the right legs but it may be that it was given because of complaints in the plaintiff's knees at that time rather than because of complaint about the plaintiff's left ankle.
On 29 November 2010 the plaintiff saw his sister-in-law for the first time. He saw her because he had dislocated his left middle finger. He also had bronchitis at the time and the doctor performed a check-up. The plaintiff went back to see his sister-in-law on 14 December 2010, the reason for that being to stop smoking. Clearly he had not given up that habit following upon his consultations with Dr Gouter in January 2008.
The plaintiff's next attendance upon his sister-in-law was on 2 May 2011. The reason given for the visit in the clinical notes of the Broadmeadow Medical Centre was "ankle pain". Under the heading, Actions, there is typed a request for a plain X-ray because the plaintiff's left ankle was not only sore but swollen, and requests for pathology tests because of a sore and swollen left ankle. The plaintiff was prescribed Celebrex, usually prescribed for joint pain, and a medication to help him with stopping smoking. The plaintiff went back to see Dr Michelle Kelso ten days later on 12 May 2011 when the diagnosis of osteoarthritis was made based on a radiological investigation. The plaintiff then was referred by Dr Kelso to Dr Peter Mitchell, an orthopaedic surgeon. He was also prescribed Panadol Osteo, a prescription to ease pain caused by osteoarthritis and he was also referred for physiotherapy. Doctor Michelle Kelso told the plaintiff to try Panadeine if he needed that to control pain.
The X-ray had been performed by Dr Zyskowski on 5 May 2011. Its report is exhibit L. It is this:

"There is an old healed fracture through the distal shaft of the fibula with associated periosteal reaction. The ankle mortice appears in normal alignment. The bones of the mid foot and distal leg are osteoporotic. Some minor degenerative change is seen at the anterior and posterior margins of the tibiotalar joint. The features are in keeping with degenerative change. No acute fracture is seen, however, the fracture through the distal fibula has not fully healed."

I infer from the words "old healed fracture of the distal shaft of the fibula" that the fracture was not recent. The doctor notes a periosteal reaction which would take months if not years to develop. That, in my view, excludes the fracture as being recent; that is, within the last six months. Clearly this fracture was not demonstrated in the X-rays performed on 16 August 2007 so it must have occurred sometime between 16 August 2007 and 5 May 2011 but I infer at least six months before 5 May 2011.

The history recorded by Dr Michelle Kelso is not contained in the clinical notes of the practice but is set out in a referral letter to Dr Mitchell. That history is this: "Left ankle pain - after cleaning a courtyard for his sister. Having injury in 2005? Old fracture that was never treated. In a lot of pain."
Dr Mitchell saw the plaintiff on 30 May 2011. His history is this:

"He actually injured it at work back in 2006. He was working as a coal miner, he rolled his ankle, essentially he ignored things and plastered [sic] it but it has become obvious now that he fractured his distal fibula at the time. He went away at Easter on a camping trip and he has basically had significant pain in his left ankle and foot since."

On 7 June 2011 Dr Mitchell referred the plaintiff on to Dr Nicholson. Doctor Nicholson's history is this:

"Regarding his left ankle he actually has a very interesting problem. He recalls injuring his ankle back in 2006 when he slipped on a piece of embedded [sic] plastic pipe in the mud. He sustained quite a significant injury to his ankle and reported at the time but really just carried on regardless. He sort [sic] no specific treatment about it and certainly didn't have it X-rayed. Since he retired he spends a fair bit of time riding his bike up and down the Fernleigh track and thought that this may have contributed to his increasing pain. His pain has been gradually increasing over the last 12 months. The pain is present pretty constantly but is exacerbated by weight bearing. He says that he is actually more comfortable [riding] his bike than walking. Arthur is otherwise fit and well."

It is to be noted that Dr Nicholson did know about the plaintiff's right hip injury and about his right leg injury but does not appear to have been told about the plaintiff's bilateral shoulder conditions or the problem he had in his left knee or the problem he had in his lower back.

There are three different strands in those three histories. Firstly, there is the history recorded by Dr Michelle Kelso of the plaintiff’s noticing the onset of symptoms in his left ankle when he was cleaning up a courtyard for his sister, a history of the onset of symptoms on a camping trip at Easter in 2011 and speculation by the plaintiff to Dr Nicholson of his symptoms having been present for 12 months and perhaps being caused by the plaintiff's bicycle riding.
The plaintiff has been cross-examined about each of those matters. He has conceded that it was his regular practice at Easter to go camping at Bretti [misspelt in the transcript as Bredai] which is on Thunderbolts Way west of Gloucester on the way to the Barrington Tops. Bretti is on the upper reaches of the Manning River. The plaintiff went there each Easter in a four-wheel drive and camped with his wife at least. In cross-examination the plaintiff admitted that he told Dr Mitchell that he went away at Easter on a camping trip and had significant pain in his left ankle and foot since that time. The plaintiff said that that was when his pain increased, not when it started.
The plaintiff also told me about his sister, Bonn, who lives in Waratah, a suburb of Newcastle, and that he did remember cleaning up her courtyard in order to assist her after the death of her husband. The plaintiff basically conceded that he may have mentioned an increase of symptoms to his sister in-law at that time. This evidence was given about his activity in his sister's courtyard:

"Q. Were you using a gurney, for example?
A. I may have swept it for her, your Honour, something like that. It was something really minor. It wasn't a big deal. All right? I was just trying to help her out with something. She was going through a tough time.
Q. This is an event, I want to suggest to you, that caused you the onset of pain in your ankle, isn't that right?
A. Yeah.
Q. And that's why you went to see Dr Kelso?
A. Okay, if that's what the record says."

The plaintiff then said that he was not sure what he was doing when he noticed the onset of pain but he may have been sweeping. In further cross-examination he did not know what happened first, an onset of pain while sweeping his sister's courtyard or doing some other work in his sister's backyard or when he was on the camping trip.

It is to be noted that the plaintiff complained to Dr Michelle Kelso about ankle pain on 2 May 2011 and I can take judicial notice of the fact that Easter day in 2011 fell on 24 April so the Good Friday was 22 April and Easter Monday, 25 April, was also Anzac Day. There may have been a public holiday on 26 April 2011 in lieu of the holiday missed by reason of the coincidence of Easter Monday and Anzac Day. In any event, one can see that Easter was approximately a week prior to his visit to his sister-in-law.
I accept that there was an onset of symptoms over Easter 2011 and perhaps an increase in symptoms subsequently when he was cleaning his sister's courtyard or perhaps an earlier onset of symptoms when he was cleaning his sister's courtyard prior to Easter. However, it would appear that those events were probably all in April of 2011. The plaintiff was unsure which was first, the Easter trip or the cleaning of the courtyard.
It has been suggested that the fracture shown on the X-rays occurred perhaps in the Easter camping trip but such an onset does not explain the radiological findings of 5 May 2011. As I said, if the fracture of the distal fibula was traumatic it must have occurred at least six months prior to the X-ray of 5 May 2011. Therefore, the fracture could not have occurred either when the plaintiff was cleaning his sister's backyard or courtyard or when he was on the camping trip at Easter.
My analysis of the evidence thus far is consistent with the "suspicion" of Dr Nicholson. My view of the evidence is that it is consistent with either an acute rupture of the tibialis posterior tendon in the event on 27 September 2006 or perhaps a partial tear of that tendon at the time which may have gone on over a period of time to completely sever and the fracture being a stress fracture rather than any traumatic fracture, as Dr Nicholson expressed in his first letter to Dr Peter Mitchell on 29 June 2011.
Furthermore, that opinion was expressed at a time when Dr Nicholson would not have been concerned about the compensability of the plaintiff's condition, merely with its cause in order to treat the plaintiff. The letter generated by Dr Nicholson was to Dr Mitchell and not to a solicitor making the sort of inquiry one would expect a solicitor to make.
What is difficult to accept, however, are the assertions made in evidence by the plaintiff about having fairly constant swelling and fairly constant pain in his ankle between say 2007 and more recently, say in 2011. Clearly there was ongoing degenerative process occurring as a result of the pathology that occurred in the incident on 27 September 2006 that may have caused symptoms from time to time.
I accept that those symptoms may have become gradually worse. The incidence symptoms initially may not have been great but became greater as the years progressed. Not only might the incidence become greater as the years progressed but so might the duration of the symptoms after each onset of symptoms, eventually leading to the plaintiff's consulting Dr Michelle Kelso about it on 2 May 2011.
However, equally it appears clear to me that some mention was made of the plaintiff's left ankle to Dr Patel when the plaintiff first saw him in August 2007 and mentions were also made to the medico-legal experts retained in 2010 and prior to that, complaint must have been made by the solicitors in order for them to file in this Court a statement of claim making an allegation of an injury to the plaintiff's left ankle for which compensation was claimed in the earlier proceedings.
Much, clearly, in this case depends upon my assessment of the plaintiff's evidence. The plaintiff was cross-examined at some length and vigorously, so and an attack was clearly launched on his credit. However, I have found guidance in my assessment of the plaintiff's evidence from some of the medical practitioners. For example, Dr Michelle Kelso referred the plaintiff to Dr Marc Russo, a specialist in pain management in a letter bearing date 8 January 2013. In that letter Dr Kelso said this:

"Arthur has a fairly high pain tolerance and is still quite fit which can come against him in insurance company assessments. (Where they may under estimate the severity of his condition). He is concerned that he may not be believed.
He has tended to avoid taking analgesics saying he will 'save it for when the pain gets worse'. But the pain in his shoulders is already stopping him from sleeping and adversely affects his moods (makes him irritable). He has taken my advice and taken at least Panadol Osteo and some Panadeine Forte at night.
He was sent for functional assessment and one of the recommendations was that he see a pain clinic. Hence this referral. But I think it is a good idea anyway as he may listen more to a specialist."

One would think that Dr Michelle Kelso, who at the time she wrote that referral had been treating the plaintiff for over two years, would have not only a professional association with him based on a large number of consultations, but also, because of the family dynamics, would have known him much longer than anybody else involved in this case, the exception of course being the plaintiff's wife. It would have been completely unprofessional for Dr Michelle Kelso to advise the specialist to whom she referred her brother-in-law that he had a fairly high pain tolerance if that was not the truth. One might think it could be otherwise if she were writing a medico-legal report, sad to say. However, I accept Dr Kelso's assessment that the plaintiff had a fairly high pain tolerance.

It is also clear from the last sentence of what I have just quoted from Dr Michelle Kelso that the plaintiff was adverse to taking medical advice. That can be clearly gleaned from the records of Dr Patel, which I have earlier quoted, when it became clear that the plaintiff was doing things like playing tennis and playing golf contrary to medical advice. It is also clear that Dr Michelle Kelso's assessment is consistent with the notes made by Dr Patel in September 2007 that the plaintiff was not very keen on undergoing pain management and also clear that he had, from other histories, that he was adverse to taking medication.
Another observation along the same lines was made by Dr Mitchell in his letter referring the plaintiff to Dr Nicholson. Doctor Mitchell wrote this on 7 June 2011:

"I must admit I had no idea which way to go on Arthur. If the arthritis of his ankle was significant he would probably be best just to have an ankle and hind foot arthrodesis and excise his distal fibula. Alternatively, just bone grafting and plating his fibula may or may not give him a lot of symptomatic relief. Arthur is also a bit of an interesting personality who is not going to handle immobility for any great period of time."

Whether one calls it a high pain threshold or an inability to handle immobility, one can see the phenomenon when the plaintiff undertook golf and tennis contrary to medical advice. Doctor Nicholson referred to the plaintiff as "this very pleasant 56 year old gentlemen" and it is interesting to speculate what Dr Nicholson may have meant by the words "very pleasant".

My own assessment of the plaintiff is that he might be described in vernacular terms as a bit of a larrikin or as a rough diamond. He clearly wishes now and wished in the past to get on with his life and to do things that he probably should not have been doing.
The plaintiff has essentially, since his hip operation, been bicycling, again the subject of some lengthy cross-examination. It transpired that the plaintiff can cycle up to 70 kilometres in one morning at least once a week. The evidence tells me of trips from his home at Lambton to the ocean baths at Newcastle in summer when he and his riding friends take a swim and then have coffee before returning home.
Another trip is to Stockton by taking their bikes on the Stockton ferry, riding out along the breakwater, presumably to its end and then stopping off at a hotel nearby for a counter lunch before cycling home. More recently they have taken up the practice of riding from Lambton or its environs where the other cyclists may live to Swansea where they visit the Swansea Workers Club which offers a "all you can eat" luncheon special.
Observations were made of the plaintiff after he gave evidence before me at Newcastle on 10 September 2014. Observations were conducted on 19, 22 and 26 September and 17 October. On Friday 19 September 2014 the plaintiff left his home on his bicycle and the investigator was not able to discover where he went. On Monday 22 September the plaintiff drove his vehicle to a heated pool at Valentine, presumably where he undergoes hydrotherapy. He then drove to a Homemaker Centre and then returned to his residence. On Friday 26 September the plaintiff again left his home on a bicycle but the investigator was unable to follow him. On Friday 17 October 2014 the plaintiff drove to the Lambton Bowling Club where he picked up an acquaintance and then he drove to the Wests Bowling Club where the plaintiff and his acquaintances played a game of lawn bowls for a period of some two hours. The investigator's report tells me that the plaintiff walked slowly with a slightly uneven gait. The reason for his antalgic gait is because of symptoms in his left ankle but it is clear that the plaintiff rode a bicycle. The plaintiff, in his evidence, told me that because of problems in plantarflexion, although he did not call the phenomenon that, he uses the heel of his foot rather than the toe of his foot to ride the cycle. A short length of film shown to me shows the plaintiff not with his heel or his toe in the stirrup of his bicycle but rather the middle of his foot on the stirrup which is something that only a flat footed person would do. The significance is not that he put his heel in the stirrup, but rather that he did not put the ball of his foot or his toes into the stirrup. The plaintiff was also noted to walk slowly up a flight of stairs, to lean forward and crouch while bowling and to kick at bowls with both feet. The reason for kicking at the bowls may be due to a restriction in the plaintiff's bending forward to pick them up.

The view I form of the plaintiff is that he is the sort of person described both by Dr Michelle Kelso and by Dr Mitchell and others and perhaps behaves in a way one would not expect a person to behave, who had certain medical restrictions. The plaintiff appears to be the antithesis of some in personal injury litigation who desire after having, for example, a lower back injury, to be wrapped in cotton wool for the rest of their lives. Mr Mitchell is not such a person.
However, equally it must be said he has not been a particularly good historian either in the histories he gives to doctors or in what he told me. For example, he told a number of doctors that he had no treatment immediately after the injury at 27 September 2006, such as X-rays or medical attention when he did. He also said that he lost no time from work after the incident. That is true but he did take time off work in 2006, according to the records of the Adamstown Medical Centre; two days commencing on 30 October 2006 and three days commencing on 13 December 2006.
As I have said earlier, there is also the probability that pain killing medication prescribed to the plaintiff for the treatment of his knees, shoulders and back may have controlled the symptoms that he experienced in his ankle. The absence of complaints by the plaintiff between 2007 and 2010 can be explained in that fashion but also it must be borne in mind the plaintiff appeared to only complain about one thing at a time as I pointed out when discussing the hand injury of November 2006 when clearly swelling was persisting since the time of the ankle injury because it was noted on both 30 October 2006 and on 13 December 2006.
There are other indications in the evidence that suggest to me that the plaintiff was not adverse to making bold statements about his ankle condition when it was in his financial interest to do so. For example, the plaintiff said on oath to her Honour, Judge Ashford, this about the pains which he was experiencing due to other conditions:

"Q. You've told her Honour about the development of the symptoms in your back. On a day to day basis now, do you experience pain and discomfort in your back?
A. Yes. I've noticed it getting worse and worse. I don't know why, because I'm not doing anything to make it worse.
Q. Is it constant pain or does it come and go?
A. Comes and goes.
Q. And you indicated, I think, earlier in your evidence that it was about the belt line, is that correct?
A. That's about where it is, yeah.
Q. Does it go across your back?
A. Absolutely.
Q. And you say it comes and goes. Do you notice any pattern to it when it develops and when it goes away?
A. No, as I said before, walking never used to be an issue for me, but to walk now, even down to the neighbour's place and that, I get this pain across my back. I don't know why, right? I ride a pushbike, okay; I've gone and bought a new bike because I went to Hadley's, and they said, 'If we give you this bike you can sit up straight, and you mightn't be in any more pain then, it might make it better for you.' So I bought a new bike, so I'm sitting straighter, okay? Anything to make it better for me."

One might be forgiven for thinking that the plaintiff's inability to walk was mediated by his lower back symptoms. However, in the current proceedings the plaintiff asked me to believe that his lower back was of little moment and his inability to walk was caused largely by his left ankle condition. He gave this evidence on p 16 of the transcript of 10 September 2014:

"Q. I just want to ask you then about how your ankle is on a day-to-day basis now. Do you still experience symptoms in the ankle?
A. It's terrible. I'm very unhappy with the outcome.
Q. We will just take that a little bit further. If you could just describe for his Honour what it is about your ankle that makes you feel it's terrible?
A. It swells every day; every day of my life. If things were tough before, it's made it even tougher.
Q. Whereabouts in your ankle does it swell?
A. All around the joint. Sometimes it will even go down the foot a bit.
Q. Are there other symptoms associated with the ankle?
A. Other symptoms?
Q. You've described yourself having pain earlier. Is there still pain in your ankle now?
A. Absolutely.
Q. Where is that pain?
A. All around in the joint and inside it.
Q. That pain, does that come and go or does it vary in intensity, what?
A. It varies, depending on what I do.
Q. Do you have some difficulties now as a result of the surgery and moving your ankle in certain directions? Is that right?
A. Yes. Yeah, I don't have much confidence in it at all.
Q. Which way is it that you have a difficulty moving your ankle?
A. If I go to turn around quick that causes me dramas. I don't believe I walk straight with it. It points to the left. I noticed I do that. If I walk on uneven ground, I pay for it."

Later the plaintiff gave this evidence at p 18:

"Q. The left ankle as it is now on a day to day basis, how does it make you feel?
A. I'm very disappointed in it. I'm disappointed at the fact that it is not going - I don't believe it's going to get any better, and I've got to put up with it. And if life wasn't hard enough before, this has made it even harder on me."

That sort of evidence ties in with the observation made by Dr Marc Russo, made after psychometric testing. Psychometric testing did not reveal that there was any anxiety, depression or stress. Doctor Russo tells me that, "There was below average pain patient on pain patient self-efficacy benefits on the Pain Self Efficacy questionnaire." I am not cognisant with that part of psychometric testing and I do not know the significance of that statement. The doctor goes on to say that there was sufficient fear of exercise and re-injury to predict disability as being present but it is clear that the plaintiff carries out exercises and runs the risk of re-injury by disobeying medical advice. One might think, therefore, that this psychometric testing was inaccurate. However, the doctor also administered a "Pain Catastrophising Scale" and noticed that there was significant catastrophising present. He went on to say this: "This indicates an adverse cognitive and behavioural response to persistent pain in the absence of any overt mood disorder." My understanding of that is that the plaintiff may verbally exaggerate what is actually happening to him, tends to see what has happened to him as a catastrophe when in fact it has not been. The doctor went on to test the plaintiff's pain in his foot and came to the view that the plaintiff's complaints of consistent pain in the left ankle were more nociceptive than neuropathic; that is, that they were a mere response to a painful stimulus rather than being caused by any entrapment of a nerve or any neural cause. In other words, in Dr Russo's assessment the plaintiff's pain is not present all the time but is merely a response to a painful stimulus.

The fact, however, remains that the plaintiff has undergone the triple arthrodesis of his left ankle, practised by Dr Nicholson, on 25 July 2011. The plaintiff was an inpatient at the Warners Bay Private Hospital for three days. He was placed in a plaster cast. That was removed on 13 September 2011 and the plaintiff was then placed in a CAM boot and put on crutches.
On 25 October 2011 the plaintiff was advised by Dr Nicholson to commence increasing his weight bearing and to undergo physiotherapy and hydrotherapy. On 25 January 2012 Dr Nicholson reviewed the plaintiff and wrote this:

"He is now six months down the track from his left triple arthrodesis. He is actually going very well from the point of view of the surgery. The heel pain that he has had has resolved completely and the pain related to his fibular fracture is also gone. There is no pain related to the subtalar or Chopart's joints. The swelling is settling nicely and he is certainly walking much better.
Unfortunately he has developed pain over the anterolateral aspect of his ankle and on the X-ray that has been done today there appears to be a progression of arthritis in the ankle joint itself. He has a prominent anterior spur on the tibial plafond and I suspect that this is causing his pain. The physio has been working very hard at the Day Hospital with him trying to increase his dorsiflexion but I think they will really struggle to achieve anything.
I know that Arthur is not keen to use any anti-inflammatories but I have recommended that he start Mobic once a day and I have given him a script for this. I have also given him a request for an intra-articular injection of a local anaesthetic and cortisone. He will get this done under image control to make sure that it goes into the ankle itself. I have asked him to come back and see me six weeks after he has had that done and to take careful attention to what happens to his symptoms."

The plaintiff went back to see Dr Nicholson on 16 February 2012. In the meantime he had been on holiday to Hawaii. The plaintiff told Dr Nicholson that he had improved since 25 January 2012 but he was still not happy with his foot. The plaintiff told the doctor that he did have the cortisone injection which gave him complete symptom relief for three weeks but his pain did come back. Since that time he had been using a product that he bought in Hawaii called Noni Juice which he applied locally.

The doctor went on to point out that the plaintiff's symptoms were now arising entirely from his arthritic ankle which was longstanding but the plaintiff declined the usual treatment for arthritis and refused to take anti inflammatories or wear a brace, again consistent with my assessment of the plaintiff and his earlier behaviour. Although the plaintiff was referred to Dr Russo and did see him the plaintiff essentially did not wish to undergo the treatment suggested by Dr Russo.
Another matter which I must take into account is this. The plaintiff asked me to accept that his major symptoms in recent times have been mediated by his ankle but when the plaintiff was referred to Dr Russo by Dr Michelle Kelso she recorded that the plaintiff had had a reasonable response to ankle surgery and that his worst pain was in his shoulders. However, as I said I accept the opinion expressed by Dr Nicholson as to the causation of the plaintiff's condition.
In a supplementary opinion Dr Nicholson said that based on the X-ray report of 14 December 2006 there was no fracture of the distal fibula. That confirmed his suspicions that the fracture noted on X-ray of 5 May 2011 did indeed represent a stress fracture and not an acute fracture suffered in that region due to the injury of 27 September 2006. In essence, it only confirmed Dr Nicholson in his earlier opinion.
Doctor Best has again been qualified by the plaintiff's solicitors. In his first report of 8 April 2013 Dr Best expressed this opinion:

"I suggest that Mr Kelso suffered an injury to the left ankle and hind foot in the September 2006 work injury and this has resulted in permanent impairment. It appears that he suffered damage to the ankle joint and a valgus deformity of the left hind-foot in association with a fracture of the distal fibula (probably a stress fracture). Mr Kelso has been treated with a triple arthrodesis and this has been reasonable treatment. It has achieved the arthrodesis intended. However, Mr Kelso has been left with continuing problems in the left ankle in the form of arthritis and equinus deformity. His work, therefore, has been a substantial contributing factor to this residual impairment and I suggest that his condition has stabilised and reached maximum medical improvement."

It is hard to know whether Dr Best was then of the opinion that the fracture of the fibula was caused by the work injury of 27 September 2006 or was a stress fracture, if one distinguishes between a traumatic fracture and a stress fracture. Doctor Best was later provided with a copy of Dr Nicholson's opinion. Of that he says this:

"Doctor Nicholson agrees that the injury in September 2006 most probably sustained an acute rupture of the tibialis posterior tendon producing progressive valgus deformity of the left hind-foot. He agrees that this injury produced subsequent progressive changes in the left hind-foot necessitating the need for a later triple arthrodesis. This letter actually confirms my suggestion that the September 2006 injury was a substantial contributing factor to Mr Kelso's continuing and permanent left ankle and hind-foot impairments."

This opinion is of little utility. Firstly, Dr Best had not diagnosed a rupture of the tibialis posture tendon in the event of September 2006 and the subsequent progression of that condition to a stress fracture occurring after that time. Doctor Nicholson merely postulated that and Dr Best appears to have agreed with Dr Nicholson rather than vice versa. However, Dr Best does not really support his opinion in any way other than by agreeing with Dr Nicholson despite putting it the other way around.

The other opinion relied upon is that of Dr Rowe for the defendant. Again, Dr Rowe in his primary report had a history that following upon the initial injury the plaintiff did not have any time off work nor did he seek any treatment and that it was not until around Easter 2011 on his camping trip that his left ankle became painful and swollen. Of course that is not the correct history. In his primary report Dr Rowe says little, if anything, about causation. In a second report of 31 July 2013 Dr Rowe expressed this view:

"Coal Mines Insurance does not have liability in regard to the left ankle and foot as there is no evidence that this pathology was produced by his employment. Documentation indicates that the initial injury in 2006 was no more than a strain with no ongoing consequences. There was no evidence of fracture involving the ankle joint surface and he did not require any treatment or time off. The more recent fracture of the distal fibula shaft, noted on X-rays in May 2011, may have occurred when he was on his Easter camping trip as it was at this time that he really developed pain in the ankle and foot region which ultimately led to his undergoing surgical treatment."

Again, one will note the incorrect history. Furthermore, on my reading of the medical evidence, an injury on the Easter camping trip in 2011 does not explain the X-ray changes noted on 5 May 2011. Furthermore, it ignores the complaint made by the plaintiff to Dr Rowe about his ankle when Dr Rowe examined the plaintiff on 27 September 2010, as well as the earlier complaint in the same year to Dr Best and an earlier complaint obviously to his solicitor and also the complaint which I infer the plaintiff made to Dr Patel when Dr Patel first saw the plaintiff in August 2007.

Doctor Rowe was subsequently given a copy of "clinical notes from Dr Przybylski dated 13 September 2006 and an X-ray report of the left ankle on 14 December 2006." The inference I draw is that Dr Rowe was provided not with the clinical notes of the Adamstown Clinic which are exhibit O but the documents which became exhibit B and exhibit J. Doctor Rowe went on to say this:

"The X-rays did not reveal any evidence of fresh fracture or any injury but simply referred to some irregularity of the tip of the medial malleolus suspicious of an old injury. There was reported some soft tissue swelling over the lateral malleolus. The examination of these documents does not alter the opinions previously given in my earlier report."

It would have been of much greater utility to me if Dr Rowe had been provided with exhibit O, exhibit 1, exhibit 2 and exhibit 3 being the records of the Adamstown Clinic, the Cardiff Medical & Skin Cancer Clinic, the clinic at 192 Union Street, The Junction and the Broadmeadow Medical Clinic.

The defendant's solicitors wrote to Dr Rowe again on 16 September 2014 and asked him to make certain assumptions and then to answer certain questions. Doctor Rowe replied on 24 October 2014. The first question asked of the doctor was this, "Is there any evidence in the operation report dated 25 July 2011 to the presence of an acute rupture of the tibialis posterior tendon?" The doctor replied that there was not. In that regard he is completely correct. There is no mention one way or the other of the tibialis posterior tendon as to whether it was intact or absent from the joint.
The doctor was then asked to state that if there had been an acute rupture of the tibialis posterior tendon on 27 September 2006 what symptoms and continuing disability would he anticipate. Doctor Rowe replied thus:

"Acute rupture of the tibialis posterior tendon is usually accompanied by some onset of pain and difficulty walking on irregular ground. There is often some localised swelling and bruising over the medial aspect of the mid foot."

The records of the Adamstown Clinic are silent as to bruising. The inference to be drawn is that there was none. However, there was a complaint of pain and there was localised swelling. Again, that is consistent with the rupture of the tendon in question.

The doctor was then asked to make 14 assumptions and was asked the significance of the history outlined in those 14 assumptions. The doctor replied that that was consistent with his view that the injury of 27 September 2006 was of temporary duration only. However, that conclusion is based to an extent on the doctor's answer to other questions.
The first question is that if the plaintiff had suffered a rupture of the tibialis posterior tendon, as suspected by Dr Nicholson, would the plaintiff have been able to undertake normal work as described as a coal miner? The doctor thought that that was possible but highly unlikely given the rough irregular nature of underground mining work. Again, one has to recall that the plaintiff is a person with a high pain threshold. One also has to have regard to the fact that the plaintiff only worked between 27 September 2006 until finally stopping work on 5 November 2007, a period of some 14 months.
However, during that period he had two days off in late October for his ankle injury and three days off in mid- December 2006 for his ankle injury, plus a period of time off work in November 2006 for his hand injury. There would then have been further time off in 2007 for the two injuries to the plaintiff's hip prior to his stopping work on 5 November 2007. In addition to that, in May 2007 the work roster changed from five shifts of eight and a half hours to four shifts of ten hours. The plaintiff may have been assisted by changing to a four day working week, albeit that the length of each shift was a little bit longer.
In addition, the defendant pointed out that the histories given by the plaintiff indicated his walking 10 kilometres from the coal face to the entrance to the mine but that, in modern times, is only a training exercise, in the event that it is necessary to evacuate the mine, when no motorised transport can be used. The plaintiff's evidence is that usually he would travel by motorised vehicle from the entrance to the mine to the crib room and then walk a maximum of about 250 metres from the crib room to the coal face, albeit often walking that distance was over rough and uneven ground.
On the same basis that the defendant asked Dr Rowe whether the plaintiff was able to undertake bicycle riding of up to 70 kilometres in half a day on a weekly basis, the doctor thought it was possible but highly unlikely, but we know it actually occurred between the plaintiff's hip operation recovery period and his undergoing arthrodesis of the ankle so the possibility is in fact reality.
The defendant also asked the doctor whether, given the assumption of a rupture of the tibialis posterior tendon, the plaintiff was able to play tennis on at least two occasions. The doctor thought that that was highly unlikely. However, we do know that he played it at least once, albeit we do not know for how long he played it. What appears to have incommoded the plaintiff was not his left ankle at that time but his right knee. Again, the evidence is silent as to how long the plaintiff played before stopping his game of social tennis. Again, there can be no argument that the plaintiff did play tennis with some major pathology in his left ankle prior to undergoing arthrodesis.

The quantum in this case is fairly easy to ascertain. Doctor Rowe diagnosed a 40% loss of efficient use of the plaintiff's left leg below the knee. Doctor Best put it at 45% loss of efficient use of the left leg below the knee. The defendant urged upon me a lesser assessment but the defendant asked Dr Rowe that in light of the plaintiff's current cycling activities as disclosed in the assumptions would he remain of the opinion that the plaintiff had a loss of 40% of the efficient use of his left leg below the knee. The doctor maintained his opinion. I accept that the plaintiff has a 40% loss of efficient use of his left leg below the knee.
Yesterday in the course of submissions I raised the possibility of the application of a deductible proportion because of a pre-existing abnormality in the plaintiff's left foot being essentially the flat footed condition which assisted in leading to the valgus deformity. However, on reflection, applying a deductible proportion in the current case would infringe the rule in Rodios v Trefle (1937) 54 W.N. (NSW) 197; [1937] WCR 290.
The condition of pes planus or flat foot is the condition that the plaintiff has from God/nature/genes. It is the foot with which he was born. I have to take the plaintiff as I find him. To make a deductible proportion because of a genetic defect, in essence, would infringe the rule in Rodios v Trefle.
The finding I have just made entitles the applicant to an award for $37,044. The remaining item is the plaintiff's entitlement under s 67 for pain and suffering, anxiety and distress resulting from that loss.
The plaintiff is currently, as I said at the commencement of these reasons, 60 years old. If he has a normal life expectancy, on the tables presently available to me which are old, he can expect to live for over 25 years. I read in today's newspaper that life expectancy for males has now gone to over 80, from birth, which is encouraging.
The plaintiff has given up smoking and has tried to reduce his alcohol intake and clearly continues to exercise. He has been tested for diabetes and he does not suffer from it. He is overweight but that might decrease with the passage of time.
Clearly, the surgery was major surgery and the plaintiff was not essentially cleared from the operative treatment until approximately January 2012, some six months after surgery. However, I must be careful. The inference I draw from the evidence is that the plaintiff has previously been awarded lump sums for the loss of efficient use of his right leg at or above the knee, for the loss of efficient use of each of his arms at or above the elbow and for the impairment of his back with consequential lump sums for pain and suffering. The plaintiff may also even have been awarded some minor sum previously for a loss of efficient use of his left leg at or above the knee because of the condition of his left knee. However, no evidence was put before me which would enable me to apply the ruling Rodios v Trefle in respect of any such loss of efficient use of the leg as a whole.
As I said, I accept that a lot of what the plaintiff said about his symptomatology in the knee has been to an extent exaggerated. However, there is confirmation in the film of the plaintiff having ongoing problems with walking and climbing stairs and he clearly still is undergoing hydrotherapy.
Doing the best I can I believe that this case stands in proportion to the most extreme case in the ratio of 1:5. That entitles the plaintiff, if my mathematics be correct, to a lump sum of $13,240 under s 67.
HIS HONOUR Any further reasons for judgment required?

O'ROURKE: No reasons, your Honour, but your Honour will recall that there's a claim for a general order.

HIS HONOUR: Yes. I haven't made any order yet. Any further reasons required, Ms Beattie?

BEATTIE: No, thank you.

HIS HONOUR: I commenced giving these reasons at 10am. It is now 4pm and no further reasons for judgment are required. I make an award for the plaintiff for $37,044 for 40% loss of efficient use of his left leg below the knee. I make an award for the plaintiff for $13,240 for pain and suffering resulting from such loss. I make a general order under s 60 for treatment of the plaintiff's left ankle condition. I order the defendant to pay the plaintiff's costs.

**********

Decision last updated: 05 March 2015

Medium Neutral Citation:	Kelso v Oceanic Coal Australia Limited (West Wallsend Colliery) [2014] NSWDC 296
Hearing dates:	10 September 2014; 5 – 6 November 2014
Decision date:	07 November 2014
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Award for the plaintiff for $37,044 for 40% loss of efficient use of his left leg below the knee Award for the plaintiff for $13,240 for pain and suffering resulting from such loss General order under s 60 for treatment of the plaintiff's left ankle condition Defendant to pay the plaintiff's costs
Catchwords:	WORKERS COMPENSATION – Coal miners – Desirability of calling expert medical evidence in a factually difficult matter
Legislation Cited:	Workers Compensation Act 1987
Cases Cited:	Rodios v Trefle (1937) 54 W.N. (NSW) 197; [1937] WCR 290
Texts Cited:	C H Leonard, Concise Grey's Anatomy (16th ed 1983, Omega Books Ltd) J E Schmidt, Attorneys' Dictionary of Medicine, (Release No 26, February 1993, Matthew Bender)
Category:	Principal judgment
Parties:	Arthur James Kelso (Plaintiff) Coal Australia Limited (West Wallsend Colliery) (Defendant)
Representation:	Counsel: Mr P O’Rourke (Plaintiff) Mr D Stanton (Defendant) Solicitors: Whitelaw McDonald (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	RJ501/13