MacKay v Edms Human Capital Pty Limited

District Court

New South Wales

Case Name:	MacKay v EDMS Human Capital Pty Limited
Medium Neutral Citation:	[2015] NSWDC 77
Hearing Date(s):	24 - 25 March 2015
Date of Orders:	25 March 2015
Decision Date:	25 March 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Determination that on 19 April 2012 the plaintiff sustained personal injury in a motorcycle accident on a periodic journey between his place of abode and his place of employment in order to work in or about a coal mine
Catchwords:	WORKERS COMPENSATION – Coal miners – Whether plaintiff worked in or about a coal mine – Whether plaintiff injured on periodic journey between place of abode and place of employment – Injury occurred prior to formal induction whilst plaintiff performing observational training
Legislation Cited:	Evidence Act 1995 Uniform Civil Procedure Rules 2005 Workers' Compensation Act 1987
Cases Cited:	Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3
Category:	Procedural and other rulings
Parties:	Jesse Brenden MacKay (Plaintiff) EDMS Human Capital Pty Limited (Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant) Solicitors:
File Number(s):	RJ315/14
Publication Restriction:	No

JUDGMENT

1. HIS HONOUR: On 17 July 2014 the plaintiff, Mr Jesse Brenden Mackay filed a statement of claim in this Court and entered it in the Coal Miners' Workers Compensation List. The plaintiff was granted leave to proceed on an amended statement of claim filed on 10 March 2015. The only relevant amendment was to par 1 of the statement of claim and clearly was in response to criticism I had made of a pleading in Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3 at [34].

2. The plaintiff claims lump sum compensation under s 66 for 30% loss of efficient use of his left leg at or above the knee; 15% loss of efficient use of the left leg below the knee; 30% loss of efficient use of the right leg at or above the knee; 15% loss of efficient use of the right leg below the knee and 30% of the efficient use of his left arm at or above the elbow and a consequential lump sum under s 67 of the Workers Compensation Act 1987 for 50% of a most extreme case of pain and suffering, anxiety and distress resulting from the losses claimed. I should point out that it is completely erroneous in law to make a claim in respect of both a leg at or above the knee and a leg below the knee, the leg at or above the knee means the whole leg. That is established by Stokes v Brambles Australia Ltd (1994) 10 NSWCCR 515.

The issue

1. The issue currently before me is that tendered by the amended defence filed on 19 March 2015 upon which I granted leave to the defendant to rely. The first two paragraphs of that defence are these:

   "1. That the Plaintiff is not a coal miner for the purposes of Workers Compensation Act 1987.

   2. The Defendant does not admit that the…