Mark Forwood and Mt Arthur Coal

[2018] NSWDC 464

District Court

New South Wales

Medium Neutral Citation:

Mark Forwood and Mt Arthur Coal [2018] NSWDC 464

Hearing dates:

6 - 9 March 2018

Date of orders:

13 March 2018

Decision date:

13 March 2018

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

For those reasons, I make the following awards against the first respondent:
(a) for $14,883.75 for 15% loss of efficient use of the plaintiff's right non dominant arm.
(b) for $13,000 pursuant to s 67.

 

I make the following awards against the second defendant:
a) for $1,177.44 from 18 February 2016 to 17 August 2016;
b) for $491.90 per week from 18 August 2016 to 30 September 2016;
c) for $495.60 per week from 1 October 2016 to 11 October 2016; and
d) for $403.40 per week from 12 October 2016 to 17 December 2016 pursuant to s 9; and
e) for $250.00 per week from 18 December 2016 to date and continuing pursuant to s 11(1).
f) for $10,716.30 for 13.5% impairment of the back.
g) $13,395.37 for 13.5% loss of efficient use of the right leg at or above the knee.
h) for $17,000 under s 67.

 

I order the second respondent to pay the plaintiff's hospital, medical and like expenses for treatment of his psychiatric condition from 18 February 2016 to 17 December 2016. I order the second defendant to pay the costs of the treatment of the plaintiff's back and right leg pursuant to s 60.

 I order the defendants to pay the plaintiff's costs.

Catchwords:

COAL MINERS’ WORKERS COMPENSATION

 

Claims for lump sum compensation for physical injuries – Worker left work after a disciplinary meeting at second defendant’s mine – claim for weekly payments since that time

Second defendant raises a defence under Workers Compensation Act 1987, s11A – “Discipline” – whether actions of the employer were “reasonable” – defence rejected – closed period claim for psychiatric illness accepted and claim for partial incapacity thereafter for physical injuries

Legislation Cited:

Workers' Compensation Act 1926
Workers Compensation Act 1987

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334
Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239
Ivanisevic v Laudet Pty Ltd (Truss CCJ, 25 November 1998, unreported
Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339; [2002] NSWCC 25

Category:

Principal judgment

Parties:

Mark Forwood (Plaintiff)
Mt Arthur Coal Pty Limited (First Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr T Rowles (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

RJ00321/16

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff, Mark Anthony Forwood, claims weekly payments of compensation from 18 February 2016 to date and continuing for either total incapacity, partial incapacity or partial incapacity to be treated as total pursuant to s 11(2) of the Workers' Compensation Act 1926, as it preserved for those working in or about a mine, and by Workers Compensation Act 1987, Sch 6, Pt 18. The plaintiff also claims lump sum compensation under s 66 of the Workers Compensation Act 1987 for a 20% permanent loss and efficient use of the right arm at or above the elbow against the first defendant, and for 22.5% permanent impairment of his back and for 25% permanent loss of efficient use of his right leg at or above the knee against the second defendant. The plaintiff also claims against each of the defendants a lump sum for pain and suffering pursuant to s 67 in respect of the relevant loss and impairment claimed.

2. The major dispute between the parties is whether the plaintiff is entitled to weekly payments of compensation from 18 February 2016 because of an allegation pleaded thus:

"During the course of his employment with the defendant, the plaintiff has been subject to bullying, harassment and intimidation causing psychological injury."

3. The matter took up four days of hearing before me last week in Newcastle. The plaintiff called his de facto wife to give evidence on his behalf and four witnesses gave evidence on behalf of the defendant. As well there were numerous documents tendered in each case.

Plaintiff’s background

4. The plaintiff was born on 23 April 1959. If my mathematics be correct, he is currently 58 years old. He has a de facto partner, Ms Nicole Margaret Gonano, has been totally or mainly dependent upon him for support since 18 May 2017. Prior to his relationship with Nicole the plaintiff was married to a lady merely identified in the evidence as Sharon. As a result of the plaintiff's union with Sharon he has a daughter who is now an adult and the mother of the plaintiff's grandchildren. The plaintiff also stands in loco parentis to Nicole's three children who also are adults but appear to have accepted the plaintiff as their step-father.

5. The plaintiff was born in Tamworth. His father was a railway worker, as a result of which the plaintiff and his parents and four siblings moved around the State during the plaintiff's early years. According to history given by the plaintiff to Dr Christopher Bench, a psychiatrist who examined him on 24 March 2017, the plaintiff grew up in Boggabri, Manilla, Queanbeyan and Cobar. The plaintiff told me that he attended primary schools at Boggabri and Manilla, and commenced his high schooling in Queanbeyan but finished it at Cobar. The plaintiff sat for and achieved the Higher School Certificate.

6. The plaintiff first entered the coal mining industry after undergoing a Joint Coal Board medical assessment on 6 December 1989. Between leaving school and entering the coal mining industry the plaintiff worked for about six months in a supermarket packing shelves, then worked on railway construction with Leighton Contractors and then had various jobs in the construction industry, most of which involved the driving of plant. Between 1989 and 1990 the plaintiff worked for Thiess Pty Ltd at the Vickery mine and at Gunnedah. He worked at the Gunnedah plant for about six months.

7. Between 1991 and 1998 the plaintiff worked for the first defendant, to whom I shall merely refer as Wambo. This was fulltime work. The plaintiff was a plant operator in an open cut mine. He drove graders, dozers, trucks, water carts and draglines.

Right Shoulder Injury

8. There is no dispute that on 7 February 1995 the plaintiff fell and injured his right shoulder. I take that date from the report of Dr David Millons, a surgeon who examined the plaintiff at the request of the defendanta on 31 May 2017. Dr Millons appears to have had available to him the records of Coal Mines Insurance which give accurate dates for injuries and accurate descriptions of what occurred. According to Dr Millons, this was what happened on 7 February 1995:

"It was on 7 February 1995, while working at Wambo Colliery, that Mr Forwood was dealing with a paddle and a dragline when it appears he fell some 6 feet, landing heavily on the point of his right shoulder. He felt as if the shoulder almost dislocated and then relocated."

9. The plaintiff told me that that event occurred during a blackout on the dragline on which he was working. He was taken by ambulance to Singleton Hospital. He was discharged from the hospital on the following day.

10. The further history of the plaintiff's right shoulder injury is succinctly recorded by Dr Millons thus:

"He was not off work for long. He went onto light duties, then onto normal duties. He was able to rest his right elbow on an arm rest driving machines which took the pressure off his shoulder, and he coped with that.

I see from his file that he saw his LMO, Dr Bergin, at that time. On 16 May 1996, he was pulling up a ladder on a shovel which jammed. As he reefed at it, he pulled his right shoulder. He does not appear to have lost time from work.

On 24 June 1996, while climbing the ladder of a dragline, he was aware of numbness in the shoulder and a feeling as if there was a balloon inside it. Again, he does not appear to have lost much, if any, time from work.

I see from his file that he's referred through to see Dr Berton [an orthopaedic surgeon] on 27 June 1996 with a complaint of ongoing pain and cracking in the right shoulder and numbness in the arm.

Mr Forwood underwent some investigations.

There was a suggestion of some problem with the acromioclavicular joint, but no further treatment was undertaken at that time.

Mr Forwood appeared to have just put up with his right shoulder problems from then."

11. There is no dispute that the plaintiff has as a result of his right shoulder injury lost some of the efficient use of his right arm at or above the elbow. There is of course the usual dispute as to quantum.

12. The investigations which Dr Berton appears to have carried out were done on 12 July 1996. Dr Millons saw a report of plain X rays of the right shoulder, which stated this:

There is slight widening of the acromioclavicular joint space but no significant change with weight bearing views."

13. Dr Millons also saw an arthrogram of the right shoulder taken on 12 July 1996. It is reported as showing no abnormality nor any evidence of any impingement. On 2 March 2017 further investigations were carried out. An X ray of the right shoulder showed minimal degenerate change in the acromioclavicular joint. An ultrasound of the right shoulder was taken at that time and was said to show some supraspinatus tendinopathy and some impingement.

14. Dr Millons's opinion as to the condition of the plaintiff's right shoulder was this:

"There is evidence of some problems with the rotator cuff at the right shoulder with evidence of some minor impingement. That has been present since he fell off the dragline in 1995.

The nature and conditions of his work, pulling himself up and down into plant, may have caused some day to day aggravation of those changes."

15. What Dr Millons refers to as "day to day aggravation" appears to me to be more likely a temporary exacerbation of symptoms caused by a particular work practice.

16. The evidence does not persuade me that the plaintiff's right shoulder condition results from anything other than the injury of 7 February 1995.

17. Dr Millons expressed this view as to the extent of the loss of efficient use of the plaintiff's right arm:

"Permanent loss of efficient use of the right arm at or above the elbow would be of the order of 15% with perhaps one third (5%) reflecting some underlying, constitutionally based attritional changes in the rotator cuff and the rest (10%) the aggravating effects of the incidents described by him, in particular the incident in 1995 and the nature and conditions of his work thereafter, he [sic] having to pull himself up and down into various items of plant."

18. The plaintiff relies upon an assessment made by Professor YAE Ghabrial, an orthopaedic surgeon who examined the plaintiff on 22 February 2017 and produced a report dated 24 March 2017. I infer that the investigations carried out on 2 March 2017 were done at Dr Ghabrial's request. The history obtained by Dr Ghabrial concerning the plaintiff's right shoulder is this:

"An injury to his right shoulder some time in 1994. He reported that the shoulder was dislocated and reduced spontaneously. He was off work for a short period of time and he returned to work. He continued with symptoms in his right shoulder since then in the form of pain and some stiffness."

19. The only inference to be drawn from Dr Ghabrial's opinion is that the condition of the right shoulder results from the injury which actually occurred on 7 February 1995. Dr Ghabrial thought that the plaintiff had a 20% loss of efficient use of his right arm at or above the elbow resulting from his right shoulder injury. The plaintiff's orthopaedic complaints mainly concerned his back and his right knee. The plaintiff's complaints about his right upper limb were modest. It is to be noted that the plaintiff is left hand dominant.

20. I accept that the plaintiff has a 15% loss of efficient use of his right arm at or above the elbow. I do not however accept Dr Millons's opinion that one third of that loss results from "some underlying, constitutionally based attritional changes." The shoulder is not a weight bearing joint. One can understand that the knee being a weight bearing joint, a hip being a weight bearing joint, and the ankle being a weight bearing joint, might develop some constitutionally based attritional change over a person's lifetime. However, the shoulder is not such a joint. Furthermore, it appears that there was no radiological abnormality back in 1996 and the appearances described by Dr Millons in 2017 show only some minimal degenerative change in the acromioclavicular joint which may well result from the injury of 7 February 1995. I accept therefore that the plaintiff is entitled to an award against the first respondent for 15% loss of efficient use of his right arm at or above the elbow.

21. I am told that my finding under s 66 entitles the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from that loss. The plaintiff has had symptoms now for some 23 years and, if he have a normal life expectancy, he could expect to live for a further 27 and a half years. However, I have used the subjunctive mood in the last sentence, advisedly. For reasons which will in due course become clear, the plaintiff is doing his best to endanger his own longevity. However, I can accept that the plaintiff would have symptoms in his non dominant arm for a further 20 years at least. The maximum payable for pain and suffering pursuant to s 67 is $66,200. Doing the best I can, I believe that this case of pain and suffering, anxiety and distress approaches one fifth of a most extreme case. I believe the appropriate lump sum to award the plaintiff under s 67 is $13,000. The plaintiff does not allege that the condition of his right arm results in any relevant incapacity for work commencing on 18 February 2016.

Changes of employment

22. On 28 September 1998 the plaintiff underwent a further pre-employment medical with the Joint Coal Board. That was in order to enter the service of Cooks Construction Pty Ltd for whom the plaintiff worked between 1998 and 2001. Cooks Construction Pty Ltd clearly was working in the mining industry. The plaintiff told me that he drove excavators, bulldozers, trucks and water carts in that employment. He told me of working at three different pits, the Donaldson pit, Wambo Colliery and the Howick Colliery. The plaintiff then joined the Ravensworth East coal mine where he again worked as a plant operator on a fulltime basis in open cut mining from 2001 to 2004. There was a change of owner at the Ravensworth East Colliery which led the plaintiff to obtain two pre-employment examinations, one for Thiess, who had taken over the Ravensworth East Colliery, and one with the second defendant, Mt Arthur Coal Pty Ltd, the operator of the Mt Arthur Coal Mine at Mt Arthur, south of Singleton. That led to the plaintiff’s taking up work with the second defendant on 3 May 2004. The plaintiff was in essence a plant operator. He drove bulldozers, excavators and trucks.

Physical injuries at Mt Arthur

23. The plaintiff, whilst working for the second defendant, reported a number of injuries. I have cross referenced my notes of the plaintiff's oral evidence with the history obtained by Dr Millons and the details of Dr Millons's history of the plaintiff's orthopaedic problems matches the plaintiff's evidence. For convenience, it is easier to divide up the various injuries that the plaintiff had to his back and right knee by considering the two body areas separately.

(i) Back Injuries

24. Dr Millons's history of the plaintiff's back injuries is this:

"Mr Forwood records jarring his back on several occasions while working and driving plant over rough and uneven terrain.

I see that on 28 October 2004 he was in a manlift. He pressed the manlift toggle switch into a lower position and the manlift suddenly fell some 300 400 millimetres and he jarred his lower back. He does not think that he went off work then.

His back was uncomfortable from that time. He would jar his back occasionally.

You note that it was on 8 January 2012 that he suffered a jarring injury to his upper and middle/lower back while walking to a dozer on solid ground.

On 9 November 2012, while driving a truck, the truck hit a bump and he had deteriorating lumbar spinal pain. Mr Forwood continued working over the years."

25. There are some things which need to be added to that history. The manlift was on an excavator. The excavator was so large that besides having perhaps a ladder which could be climbed by the person operating the excavator, a lift was also supplied. The plaintiff's evidence was not of falling up to 400 millimetres, but to falling 1.5 metres. He told me that when the manlift abruptly stopped he was one metre above ground level. The plaintiff told me that in that event he also had a problem with his right knee. In that regard the plaintiff was not challenged. He reported the incident to his Open Cut Examiner (OCE), Mr David Balcombe. He was treated at the first aid post with rest and ice.

26. The history recorded by Dr Millons about the incident of 8 January 2012 appears to result from a misunderstanding. The plaintiff was involved in a procedure known as "walking the dozer." The bulldozer was being moved from one job to another. The plaintiff was driving it. It travelled over a solid rock platform and he was "rattled" severely. Again, that was reported to his OCE and required a visit to the first aid post.

27. The incident of 9 December 2012 did not involve the plaintiff driving a truck, but rather a light vehicle that has been referred to as a "Toyota Troop Carrier," which struck a bump and caused a severe increase in the plaintiff's low back pain. The plaintiff said that at the time of driving the light vehicle he was on his way to operate either a bulldozer or a drill.

(ii) Right knee injuries

28. The history recorded by Dr Millons concerning the plaintiff's right knee is this:

"Mr Forwood describes an injury to the right knee when the drill seat on which he was sitting swung around and, as he put his right leg out to stop the rotating movement of the seat, he twisted the knee into what appears to have been something like a valgus position. That incident appears to have occurred on 7 October 2014.

There were earlier incidents with the right knee that you have recorded.

On 31 December 2005, while climbing up a ladder of a dozer, he slipped and twisted the right knee.

On 14 July 2010, whilst walking along the deck of a float, his right leg became lodged in a hole on the floor of the float deck.

On 18 July 2014, while climbing down a ladder onto uneven ground, he twisted the right knee.

After the incident in October 2014, Mr Forwood had the knee iced. He does not appear to have stopped working. He thinks he saw the Mt Arthur Coal doctor, but he was not referred on to see any

specialists. He may have had some physiotherapy. The Physiotherapist thought that he might need an operation on the knee.

Mr Forwood was aware from time to time that the right knee seemed to hyperextend."

29. The "float" the subject of the injury of 14 July 2010 was a huge flat low loader for moving heavy plant. At the time of that incident the plaintiff was trying to load an excavator onto the float. Mud covered a hole in the float and the plaintiff's right leg went into that hole, through the mud, and he was stuck in that position, unable to extract his leg from the hole. The plaintiff told me that not only did his right knee hurt, but he also injured his low back at that time.

30. Unfortunately, I have no note of the plaintiff’s telling me about the event of 7 October 2014, but it is recorded in Dr Millons's report and he was qualified by the defendant and his reports were put before me by the defendant. I have no hesitation in accepting that that event occurred even if the plaintiff did not tell me about it. I should point out that there was no actual doctor at the Mt Arthur mine. The workers at the mine often referred to a physiotherapist, who used rooms at the mine to treat people for compensable and non-compensable conditions and to treat them prophylactically as the "doctor."

Orthopaedic evidence

31. It is common ground that the plaintiff has some impairment of his back and some loss of efficient use of his right leg at or above the knee as a result of the events which occurred to him at the Mt Arthur mine. However, those problems were not the real reason for the plaintiff's stopping work. It is convenient at this time to canvass the orthopaedic evidence as to the conditions of the plaintiff's back and right knee.

32. Dr Ghabrial's report of 24 March 2017 tells me this about the plaintiff's back:

"Examination of the back on 22 February 2017 showed a normal sitting and standing attitude. There was a normal gait and normal postural curves. The spinal movements were mildly decreased with discomfort. Extension, lateral bending and rotation were decreased with discomfort. There was mild paraspinal lumbar spasm. The straight leg raising was normal. There was no motor, sensory or reflex deficits. There was moderate tenderness at the L4 S1 level of the lumbar midline. The femoral stretch was negative and the sacroiliac tests were normal."

33. Dr Ghabrial went on to express this view of the radiological investigations:

"The X rays and CT scan of the lumbar spine performed on 2 March 2017 showed mild disc bulging at the L4 5 segment and moderate disc bulging at L5 S1 segment without any neural compression. However, at the L5 S1 segment the bulge is producing impression on the anterior thecal sac."

34. Dr Ghabrial's description of the disc bulging at L5 S1 I find to be somewhat curious. I can understand a bulging disc touching the anterior thecal sac, and I can accept that a bulging disc might compress the anterior thecal sac. However, if it did compress the anterior thecal sac, that would be compression of a neural structure. It may be that what Dr Ghabrial was trying to describe was that the disc bulge at the L5 S1 level touched the thecal sac or reached it. Dr Ghabrial's opinion was that the plaintiff had sustained disc injuries at L4 5 and L5 S1 which he thought was mild at L4 5 and moderate at L5 S1. However, bulging discs are usually a sign of degenerative disc disease in the relevant area of the back, in this case in the low back. Furthermore, bulging discs would not explain pain over the L4 vertebra or the S1 vertebra.

35. The relevant part of Dr Millons's examination of the plaintiff is this:

"Mr Forwood moves slowly but has a normal heel/toe gait. He is stable standing on either lower limb.

There is no spasm or tilt of the lumbosacral spine. There is no tenderness. He feels the tenderness 'inside' from the lower thoracic

region down to the sacrum.

Flexion brings his fingertips to the knees. Extension is to the vertical. Lateral flexion to left and right is one half normal range. Movements are restricted by pain and stiffness.

Straight leg raising is 70 degrees on each side. The hamstrings are tight. The sciatic stretch tests are negative."

36. On examination there was really nothing to be found other than complaints of tenderness but Dr Millons did find stiffness. Dr Ghabrial said he found muscle spasm but none was found by Dr Millons. I cannot be satisfied on the balance of probabilities the plaintiff has a true muscle spasm, which would be indicative of an organic problem in the low back.

37. Dr Millons expressed this view on causation:

"Mr Forwood has some problems with his back over the years.

He has jarred his back on occasion and that would be consistent with the nature and conditions of his work driving plant over uneven terrain.

There is evidence of some early, constitutionally based attritional changes in the lower two lumbar discs which could be aggravated by the normal activities of daily living and by the nature and conditions of his work.

He has had ongoing symptoms since he went off work in February 2016. He took a redundancy package two months later and he has not returned to work...

I note that Mr Forwood indicates that the nature and conditions of his employment included whole body jarring, vibrations as a result of operating various plant equipment over full shifts over rough roads and dumps, climbing over and descending stairs, requiring the use of arms and shoulders and regular lifting, bending, constant kneeling, lifting various weights and traversing uneven terrain. That would seem to sum up the nature and conditions of his work well." [the doctor's emphasis]

38. Dr Ghabrial expressed the view that the plaintiff had a 22.5% impairment of his back with no deduction necessary for any pre-existing condition or disease or any previous problem. Dr Millons diagnosed an impairment of the back of 15% and went on to say this:

"Of that figure, one third (5%) might reflect the underlying, constitutionally based attritional change on which are plain normal activities of daily living, and the rest (10%) the aggravating effects of the nature and conditions of his employment over the years and the incidents described by him with symptoms first becoming obvious in October 2004."

39. I accept the plaintiff has some degenerative disc disease in his lumbar spine. Indeed it could go further if one accepts that the plaintiff complained to Dr Millons of "internal" tenderness between the lower thoracic spine and the sacrum. Rather than frank discal injury I accept that the appearances at the L4 5 and L5 S1 levels result from degenerative disc disease.

40. The quantum assessed by Dr Ghabrial is unrealistic. I say that because, having dealt with many of these cases over 24 years, one might find an 18% impairment of the back if there is a disc protrusion at some low lumbar level and if it has been necessary to practice laminectomy and fusion, the extent of the impairment could reach 25%. Accordingly, I accept the 15% impairment of the back found by Dr Millons. There is then of course the problem as to whether there should be a deductible proportion because of underlying constitutionally based condition. I have one ipse dixit from Dr Ghabrial and another ipse dixit from Dr Millons. Accordingly I shall apply the statutory 10% deduction so that the plaintiff is entitled to an award for 13.5% permanent impairment of his back.

41. Dr Ghabrial said this of his examination of the plaintiff's right knee:

"Examination of the right knee on 22 February 2017 showed no scars. There was mild swelling, effusion and quadriceps muscle wasting. There was moderate tenderness on the postero-medial aspect of the right knee. The range of motion was 0o - 120o. There were mild crepitations and the ligaments were intact. There was pain the patellofemoral joint. The sensation, flexion power and extension power were normal."

42. A mild swelling is an effusion, so it was not necessary for the doctor to provide the hendiadys of a swelling and effusion. I understand Dr Ghabrial's use of the words "flexion power and extension power" to mean simply "flexion and extension." Dr Ghabrial tells me that X rays of the right knee performed on 2 March 2017 showed mild osteoarthritis of the medial compartment of the right knee with some evidence of enthesopathy on the insertion of the quadriceps tendon.

43. The relevant part of Dr Millons's findings on examination are these:

"The right knee is some 10o valgus. There is some knobbliness around the medial side of the knee. There is no effusion into the knee joint.

There is no tenderness beneath the patella. The patella friction test is negative. There is tenderness medially and posteromedially and also over the femoral and tibial condyles.

The right knee exhibits a range of movements from 0o - 110o accompanied by some crepitus. There is slight anterior draw and possibly a slight medial collateral ligament laxity.

The right ankle is normal to examination.

The left knee exhibits a range of movements of 0o - 120o accompanied by crepitus but no other abnormality is noted."

44. Dr Millons's findings indicate a greater problem with the plaintiff's right knee than do the findings of Dr Ghabrial. In particular Dr Millons points out that there was a reduced range of movements in the right knee compared to movements in the left knee. What Dr Ghabrial described as enthesopathy of the insertion of the quadriceps tendon was merely described by Dr Millons as being some beaking of the tibial spines. He also thought there was a little lipping on the upper border of the patella.

45. Dr Millons expressed this opinion:

"Mr Forwood had a couple of twisting injuries to the right knee. It appears that in the incident in October 2014, when he put his leg out to stop a drill seat that was rotating and caught his foot on the wall, the knee was driven into a valgus position.

He has maintained ongoing problems with the knee since that time.

There was radiological evidence early this year of some early constitutionally based degenerative changes in the knee which may have been aggravated by that incident. There may have been a medial ligament strain at that time.

The knee is mildly stiff and irritable."

46. He diagnosed a 15% loss of efficient use of the plaintiff's right leg at or above the knee, of which he thought one third reflected some "underlying, constitutionally based attritional changes in the knee," and the rest of the loss was due to both the injuries of which the plaintiff had told him and of which the doctor had been made aware by the insurer, and also the "nature and conditions of his work over the years." Dr Ghabrial expressed the view that the plaintiff had a 25% loss of efficient use of his right knee and that there was to be no deduction for any pre-existing condition or disease.

47. Bearing in mind the plaintiff's complaints to the doctors, I accept that he has a 15% loss of efficient use of his right leg at or above the knee because of the condition of his knee at this time. I accept that his knee condition results from both the injuries he described or that are described in the evidence and the type of work the plaintiff did at the second defendant's mine at least prior to his being transferred to drill work. Again, I have an ipse dixit from Dr Ghabrial that there is to be no deduction for any pre-existing condition, and I have another ipse dixit from Dr Millons that one third off the loss should be deducted. In the circumstances I accept that I should apply the statutory deduction of 10% so the plaintiff is entitled to a finding of 13.5% loss of efficient use of his right leg at or above the knee.

Pain and suffering

48. The next question which arises is whether those two findings should be taken together to assess the plaintiff's entitlement under s 67. I am told by Mr Benson, who appears for the plaintiff, that my finding of the extent of the loss of efficient use of the plaintiff's right leg at or above the knee entitles him to lump sum compensation under s 67 for that loss. As I understand it, the finding of the extent of the permanent impairment of the back would not entitle the plaintiff to a lump sum for that condition, only if the two could be taken together could there be an award for pain and suffering in respect of the impairment of the plaintiff's back.

49. When I adjourned yesterday evening the issue which I had identified which needed to be determined is whether I should take into account my finding as to the extent of the impairment of the plaintiff's back and my assessment of the loss off efficient use of the applicant's right leg at or above the knee for the purposes of s 67. Essentially I have found that an ingredient of the causation of the impairment of the plaintiff's back and the loss off efficient use of his right legal at or above the knee is the type of work he did as a plant operator in an open cut coal mine. The disease provisions of the Act are clearly applicable. There has been the aggravation, acceleration, exacerbation, deterioration of a disease of gradual process. Theoretically the last relevant date, the last day on which the plaintiff physically performed work, was not 17 February 2016 when he was called to a meeting, but the nightshift on 14 February 2016 which would have ended on the morning of 15 February 2016 at approximately 6.30am. The disease process is the same. To use the terminology so well used by Dr Millons there was attrition, wear and tear. In those circumstances the mechanism is the same. It is the same work causing attrition to both the back and the knee. It may be objected, although it has not been submitted, that some activities might cause attrition to the knee and not attrition to the back, and some activities may cause attrition to the back but not to the knee. For example, merely bending over to pick something up might cause attrition to the back but not to the knee and walking over rough and uneven surfaces may only cause attrition to the knee but does carry a risk of attrition to the back. However, all forms of work are intimately connected. O, one cannot divide up one act of say walking and picking up a stone in the process of walking, or being jarred when jumping off a cobble of coal.

50. Perhaps analogy is the best way of approaching the matter. Assume that a worker is climbing a ladder and loses his footing. He takes the weight of his body on his hands by which he is holding onto the ladder. He may be a heavy person and the sudden jolting the sudden bearing of his weight by the hands through the shoulders might cause a dislocation of the shoulder. That might cause the worker to let go of the rung of the ladder with one hand and being unable to sustain the whole of his weight on the other hand might cause him to lose his grip and fall. He lands on his feet but the impact is so great that he does damage to either bones in his feet, his ankle joints or his knee joints. He then buckles and falls to the ground and strikes his head leading to a subdural haematoma which might cause some organic brain damage. This would all be categorised as the effect of one event falling from a ladder, a frank injury. However, one can dissect it up and say, well firstly there was the dislocation of the arm and albeit that it might be only measured in hundredths of seconds, subsequently there was the damage to the lower limbs, and, after that again, although it might be only hundredths of seconds later, there was the striking of the head leading to the organic brain damage. In other words, if one closely analysed any event, one might determine that certain injuries happened at different times albeit that the time lag might be small. No one would take such a point. Here I believe the same should be looked at as far as the activities of a worker where the nature of the work is such that it can cause attrition to spinal joints and the joints of limbs and the like. After all, there is little difference between a disc in the back and a meniscus in the knee. Both are in intra articular bodies which shield bone from rubbing on bone. Therefore the process is the same and therefore I believe that I can take into account both the plaintiff's back complaints and his right knee complaints in making an assessment under s 67 as against the current second defendant, Mt Arthur Coal.

51. Essentially these conditions stem from the event of 24 October 2004. Since that time the plaintiff has had symptoms in his back and his right knee but they have gradually deteriorated. There were some 13 years between that event and the current time, and as I pointed out yesterday, the plaintiff’s life expectancy is probably at least 20 years. That is not an inconsiderable time in which to suffer pains in the right knee and the low back, it must be remembered that low back pain can be particularly debilitating. However, the plaintiff's complaints were mainly about his psychiatric condition rather than his low back and his right knee. Doing the best I can, I believe that the appropriate sum toward the plaintiff under s 67 is the sum of $17,000.

Circumstances leading to mental illness

52. I turn then to the main issue in the case, the plaintiff's psychiatric problems. Many of the events relied upon by both the plaintiff and the defendant have been documented by the defendant or by various officers of the defendant. By defendant I am again referring to Mt Arthur Coal, the second defendant. On 24 January 2013 Mr David Seabrook, one of the plaintiff's supervisors (who was sometimes referred to as his OCE) prepared a "Attendance Review Form." In that form he noted that the plaintiff had four shifts off work on 12, 13, 17 and 18 December 2012 as sick leave for which he did not produce a certificate. When asked to explain his absence the plaintiff told Mr Seabrook that he had "gastro" on 12 and 13 December and that he was actually rostered to have annual leave on 17 and 18 December but for some reason it was processed as sick leave about which the plaintiff was quite content because it meant that he did not lose two days' annual leave entitlement.

53. Mr Seabrook asked the plaintiff if it were possible that from that time on he provide a medical certificate when sick leave was used. Mr Seabrook also stressed the importance of accurate leave records being maintained and for the need for the plaintiff to communicate any errors on his payroll advice to the relevant officials of the defendant. The plaintiff remonstrated with Mr Seabrook about sick leave. Mr Seabrook recorded this comment then made by the plaintiff:

"I will not be providing a medical certificate for any sick leave that's two shifts or less."

54. Mr Seabrook advised the plaintiff that in doing so he would be actually in breach of his Enterprise Agreement and that there may be more discussions with him by those higher up in the mine hierarchy about his taking of leave.

55. That actually occurred on 12 February 2013 when the plaintiff was interviewed by his then superintendent, Frank Botha. I should indicate that the hierarchy at the Mt Arthur mine is for coal miners to be overseen by supervisors or OCEs and the next level in the hierarchy of the mine is the superintendent. Mr Botha noted that in the Enterprise Agreement it was clearly stated that sick leave for more than two days per person per annum needed to be justified by the provision of a certificate. When Mr Botha pointed that out to the plaintiff, the plaintiff said that he was under the impression that he only needed a certificate is if he was off work for a period of more than two days and if his absences were for one or two days he need not produce a certificate. In other words the plaintiff believed that if, for example, he took five separate days on sick leave he did not need to produce a certificate for any of them, but the Enterprise Agreement appears to have provided that if he took any more than two days' sick leave in any one year he would have to provide certificates for any sick days thereafter. According to the Attendance Review Form made by Mr Botha on 12 February 2013, the plaintiff committed himself to providing certificates for absent days in the future.

56. However, that did not occur. Annexed to exhibit 15 are the plaintiff's leave records, between November 2011 and at least up until 17 February 2016. In the calendar year 2013 the plaintiff took three days' sick leave without providing a certificate together with eight days' sick leave for which he did provide a certificate. In other words, he had breached the undertaking that he had made to Mr Botha. In the calendar year 2014 the plaintiff took four days' sick leave without producing a certificate together with one day sick leave with a certificate. In other words, he again breached the Employment Agreement and his undertaking to Mr Botha. In the calendar year 2015 the plaintiff took three days' sick leave without providing a certificate as well as six days' sick leave for which he did provide a certificate. In other words, he again breached the Employment Agreement and his undertaking to Mr Botha. The plaintiff also had off in 2016 20 and 21 January without producing a certificate.

57. Sometime in 2013 the plaintiff came under a new supervisor/OCE, Mr Clydesdale. One of the interactions between the plaintiff and Mr Clydesdale concerned operating a drill during lightning storms. This issue was introduced at different times in the evidence of the plaintiff and Mr Clydesdale but there is no documentary evidence to indicate when the interaction may or may not have occurred. I shall accordingly introduce it at this time. Sometime towards the end of 2012, but it may have been in early 2013, the plaintiff at his own request moved from being a plant operator to being a drill operator. He discussed this issue with his then supervisor/OCE, Mr Balcombe, and with his supervisor, Mr Hamson. The plaintiff was experiencing continuing symptoms in his back and right knee whilst driving plant. He asked his supervisor and superintendent to be moved off excavators and dozers and his application, which was informal and purely oral, was accommodated and he was moved onto drills. Drills are structures which drill holes into a coal bed to enable explosives to be dropped into the drill holes and eventually the explosives are detonated to break up the coal so that the coal can be loaded by the use of bull dozers and excavators into trucks and taken out of the open cut mine.

54. When the mast of a drill is fully extended it is 30 metres high. If there be an electrical storm, which was referred to in the evidence as a lightning storm, it was the plaintiff's practice to lower the drill mast and to leave the drill and take shelter in a crib room or other protected area lest the drill be struck by lightning. That had been the plaintiff's practise. He continued to observe that practice, even though Mr Clydesdale had asked him not to do so. The evidence about this I found somewhat amusing. Mr Clydesdale gave evidence of the old system of detecting a lightning storm and of the new system of detecting a lightning storm. A new automated system was introduced in 2016 but when that new automated system was introduced vis à vis the cessation of the plaintiff's work on 14/15 February 2016, the evidence does not disclose. Mr Clydesdale told me that the old system required a supervisor to sit on a wall and watch for approaching lightning storms. There were three levels of alert, red, amber and green, and I assume that that order was given to me in reverse order that if there was green there was no putative problem, that amber was a warning and red meant that a lightning strike might be imminent. Mr Clydesdale told me that if it was estimated that the electrical storm was 16 kilometres away or less, the warning level turned to red. However, Mr Clydesdale told me that there was actually no risk whatever to an operator using a drill in an electrical storm if the drill mast was up and the operator was sitting in the cabin of the drilling machine. He told me that the drill mast operated as a lightning conductor and, because of the operator's position in the cabin of the machine, that cabin operated as a Faraday cell meaning that there was no actual threat to the drill operator as the electricity would pass around him, that is around the cabin in which he was seated.

55. Despite the advice given by Mr Clydesdale to the plaintiff, the plaintiff continued to act as he had in the past. Mr Clydesdale told me that he in fact never directed the plaintiff or any other drill operator to use a drill when there was a lightning storm around, but the plaintiff's evidence was to the contrary. According to the plaintiff, Mr Clydesdale called the plaintiff a "smart arse." Mr Clydesdale denied saying that, but from other evidence and other actions of the plaintiff, which could be readily described in the vernacular as being a "smart arse," it seems to me likely that the plaintiff may have been called a “smart arse” by Mr Clydesdale in 2013. However, that was not the cause of any incapacity. When the plaintiff told me about being called a "smart arse" he broke down into tears in the witness box. I believe it highly unlikely that he did so out in the Mt Arthur Colliery in 2013.

56. The next issue concerns an issue that can be shortly described as "signing off." In 2013 a new system was introduced at Mt Arthur requiring workers leaving their shift to sign off on a sheet which contained the names of all the members of the shift who were signing off work. Evidence was given, which I completely accept, of the previous system which was open to abuse and required a close reading of cards before one could ascertain whether a person had actually signed off at the end of this shift or might still be somewhere out in the mine. There was good reason to introduce the new system, and in any event that is not a question for the Court but for the employer who operated the Mt Arthur mine.

57. Exhibit 1 is a file note prepared by Mr Clydesdale and concerns "informal counselling," which was given to the plaintiff on 24 May 2013 for his activity on 21 May 2013. The substance of exhibit 1 is this:

"On Tuesday, 21 May at 6.23am Mark came up to me to sign off the time sheet, I told Mark that he would have to wait until I had finished the start up, and that he was not supposed to be in here before 6.30. Mark left the room and then walked through with his crib bag towards the bath house without signing off. Mark then returned to sign off after having a shower and while signing off with the sheet with his pen and left the room. I then changed the time on the sheet to the time Mark went to the shower which was 6.25am. The second incident happened on 24 May at 6.27pm. Mark again walked in to sign off, I had just started my pre shift talk, so he left the room. When finished Mark came back to sign off[,] showered again. It was then I noticed that Mark had signed his name with 2 crosses and he did this again when signing off. I asked him if this was his signature and what was his problem with the sign off sheets. I also told him that it was not acceptable that he have a shower before he signs off, and that I had adjusted his time on Tuesday morning and that this would continue to happen if he showered before signing off. Mark said that this place was treating them like children and I was now talking in his time, which was still only 6.45pm and left the room."

62. Under the rubric "Corrective action agreed upon to ensure this does not occur again," is recorded this matter:

"I have told Mark that this is unacceptable, to go to the showers before signing off, and he needs to have his correct signature so we can account for him being at work or left work respectively. Mark said as he left the room he would see what he could do."

63. The latter is obviously a sarcastic comment. The system was for there to be a talk by a supervisor/OCE to the oncoming shift workers and only after that talk had been completed could the workers completing their shift sign the sign off shift paper and then go to their showers and then go home. In any event the workers on a shift were paid until 7.10am or 7.10pm respectively. One can see that at 6.45pm the plaintiff was not "in his own time" because he was being paid by the second defendant until 7.10pm.

64. Despite having behaved inappropriately on 21 and 24 May 2013, the plaintiff behaved inappropriately again on 26 May 2013. Exhibit 16 is a file note compared by another supervisor, Andrew Lind. Again, Mr Lind provided informal counselling to the plaintiff. The description of the incident made by Mr Lind is this:

"On 26 May 2013 at 6.25pm Mark Forwood came into the P7 deployment area and asked to be able to sign off on the B crew time sheet. He was told that he would not be able to sign off and would have to wait until D crew pre shift brief was complete and the B crew sheet was brought out as per latest procedure. At this Mark displayed an unacceptable level of disrespect for this process and for myself who was supervising the sign on of my own crew and setting up for our start up. Mark then indicated that he intended to

wait in my start up until the sign off sheet came out. He was told that he would not be permitted to remain and was told to wait in the crib room.

After the start up I brought out the sheet for B crew to sign off, Mark again spoke of his contempt for the process and for me as he signed off, making a performance of this with the other P9 B crew people.

It is disappointing that Mark appears to believe this process is an attack on himself."

65. The file note concludes with Mr Lind advising that he had told the plaintiff's own supervisor, presumably Mr Clydesdale, about the plaintiff's behaviour.

66. The plaintiff behaved inappropriately once again on this issue on 30 May 2013. On this occasion a file note was made by Mr David Seabrook, a supervisor. He may not have been the plaintiff's supervisor but the supervisor of the D crew which generally relieved the B crew. The description contained in exhibit 17 is this:

"On Thursday, 30 May 2013 at 6.25pm, the B crew sign on folder was brought into the Production 9 start up room for start of shift at 6.30pm. As some employees began signing onto the sheet, Mark Forwood looked at the employees who had signed on and said, 'Only the arse lickers sign on before 6.30. It's not 6.30, yet we're not getting paid'. This comment was ignored by those at which it was directed... This is clearly in direct breach of BHP's Charter Values Respect.

In my absence Mark has had some issues with Relief Supervisors signing on and Supervisors off other crews when signing off and has stated that the company is treating workers like children.

Mark has also been spoken to about showering before 6.30, which is in company time. Upon investigation... Mark has been failing to log off his Drill at shift end and failing to enter a delay code. Mark is also stopping his Drill before 6 o'clock each shift and failing to enter any delay/end of shift code.

Mark's behaviour and actions are not in line with company expectations in regards to both the Charter Values and with Production expectations."

67. The "Corrective action" on this occasion was that the plaintiff was given another "talk" by his supervisor which does not appear to be Mr Seabrook, but it might have been Mr Clydesdale again. The plaintiff had communicated to him the expectation that he keep the drill manned and in production until either 6.10am/pm to 6.15am/pm unless he communicated a valid reason to his supervisor for that not being possible. He was also admonished to enter the correct shift change delays into the "modular system," which I understand to be some form of computer record. He was also directed that after arriving back at the deployment area he was to wait until after the pre start briefing to the oncoming crew before signing off. He was also advised to behave in a respectful and courteous manner, not only with his supervisors but also with his workmates. He was also told that only after signing off was he permitted to proceed to the bath house for showering, and that he could not go to the bath house to shower until after he had signed off. Accordingly one can see that the plaintiff was supposed to keep working until 6.10 or 6.15, he then could go to the deployment area and sign off from 6.30 onwards and then he could go and have a shower and he was still being paid until 7.10.

68. The plaintiff's interaction with those in authority concerning the new signing off procedure led the plaintiff to speak to his general practitioner, Dr Cecil Ford, at the Raworth Cottage Medical Practice at Singleton. The plaintiff saw Dr Ford on 5 June 2013 at 2.02pm. Notes recorded by Dr Ford are these:

"'Feeling a bit depressed again'... Reason? ... Says work... 'Giving me a hard time, boss carrying on with him a bit... always changing rules... getting upset... dragged him in and gave him some lectures' ... Relationship [with de facto wife] OK.

Anxious, easy teariness, feeling flat, amotivational.

Says boss lied to him and then laid the blame on him (whatever it was).

Wants to resume antidepressants and two weeks off."

69. Dr Ford gave the plaintiff some counselling. He also obtained a complaint that the plaintiff had had a "cold" for the last three days with chills and aches and pains. The doctor prescribed Avanza 30 milligrams, one to be taken each night. Avanza is a brand name for the generic drug mirtazapine. That was not the first occasion on which Dr Ford had prescribed that drug for the plaintiff, but I will return to that issue later. The doctor also issued a certificate which was not on the WorkCover prescribed form, but a normal certificate of unfitness for work indicating unfitness for normal work between 7 and 21 June 2013. That represents the eight days' sick leave taken by the plaintiff in 2013 when he produced a certificate. It appears that the interaction of the plaintiff's supervisors and the plaintiff concerning the new sign off procedure was taxing for both. The plaintiff does not claim compensation in respect of that period of alleged incapacity for work.

70. On 11 July 2013 the plaintiff was given counselling by his superintendent, Ms Hannah Farr, who, like Mr Clydesdale, gave evidence last week in Newcastle. Ms Farr made the file note which is exhibit 3. It in essence provides a synopsis of the matters I have already discussed. It also raises the question of the plaintiff's recent block of sick leave when he lost eight shifts between 7 and 21 June 2013. According to Ms Farr's file note, the plaintiff agreed that he would do the following:

"1. Behave in a professional manner toward supervisors at all times, and in particular at the sign on.

2. Sign off at 6.40am/pm with a consistent signature that is

predominantly inside the signature box, will not damage or deface the time sheet, and will not attempt to sign upside down.

3. Will not have a shower prior to signing off.

4. Will enter a correct shift change delay into Modular prior to leaving a drill at end of shift.

5. Will contact the superintendent to explain any unplanned absences in addition to the normal notification to despatch (to be handed over to his supervisor David Seabrook on return from leave). This requirement will remain effective for three months until 27 September 2013."

71. The document ends with a note that the plaintiff agreed that any deviation in his behaviour away from what was outlined at the meeting with him would result in escalation of the informal counselling to a level 1 "verbal warning," which on the evidence before me really means an oral warning, a warning not being reduced to writing.

72. It would appear that by that stage that that file note was made Mr Seabrook had replaced Mr Clydesdale as the plaintiff's normal supervisor. On 29 September 2013 there was some conversation between the plaintiff and Mr Seabrook about his sick leave. Exhibit 18 refers to this interaction. The discussion was about what was thought to be an unacceptable amount of sick leave in the preceding 12 months. In that 12 month period the plaintiff had taken seven sick days without a certificate and eight sick days with a certificate. However, the file note is in fact helpful for the plaintiff in that it records this:

"Mark agreed to continue working towards improving his attendance. Mark understands the importance of presenting for work and the effects it has on the team of not doing so. Mark is also aware of the requirement to obtain Certification in the event of further sick leave.

Since Mark had a similar discussion in January this year, he has had two Un-Certified sick days and eight days Certified. Mark has had some personal issues he is working through and has discussed those issues with his Supervisor and Superintendent. Mark's overall attitude towards work has greatly improved, as has his attendance in the past two to three months and Seabrook thanked him for his effort and asked for it to continue."

73. Unfortunately the evidence does not disclose to me what the plaintiff's personal issues were in 2013. I am well aware of the plaintiff experiencing matrimonial difficulties in 2010, but by 4 August 2010 the plaintiff had found his new partner, Nicole, and described himself to Dr Ford as being "happy."

74. The plaintiff did return to see Dr Ford on 11 November 2013. Dr Ford took this history:

"Looks more relaxed and happier: did not return for follow up after last relapse of reactive depression: work related: his boss has since been sacked... had a holiday with partner including spending time at her property at Taree. Seeks renewal of Avanza now for five months: says occasional teariness without reasons: on enquiry... withhold further anti depressant."

75. The important thing to note is that the plaintiff was then happier, that whoever he believed had it in for him at the Mt Arthur mine was no longer there, and as far as Dr Ford was concerned, he no longer needed to stay on Avanza.

76. Nevertheless the signing off problem continued into 2014. On 15 March 2014 an OCE, Michael Waugh, filled out a form headed "Record of Interview." The substance of the document is this:

"At approximately 6.40[am] on 15 March 14, I observed Mark Forwood yelling at Gary Peterson (Step-Up) to hurry up and bring the sign off sheets out as he (Gary) was an ex union rep and then took the sign off sheets off Gary so there would be no further issues.

While we had the sheets out at 6.45pm I heard Mark swearing saying, 'Fucking idiots'[,] 'no wonder nobody wants to work here'.

Unfortunately due to the crowd of people signing off I could not catch Mark to speak to him."

77. That led to the plaintiff’s being given a "verbal warning," the first stage of the employer's disciplinary system. The verbal warning was given to him by a Superintendent, Jeff Hanlon, and the supervisor present was Mr Seabrook. Mr Hanlon recorded that the plaintiff disagreed with the comments that had been made against him, presumably those recently made against him by Mr Waugh. The file note made by Mr Hanlon goes on to record this:

"He believed that the discussion from Hannah Farr in place for three months only. He believed that he had not used abusive language towards the supervisor."

78. Both the plaintiff's observations were correct. However, it was pointed out by Mr Hanlon that there should not be any abusive behaviour at any time in the workplace and certainly the plaintiff had acted abusively if Mr Waugh's comments were to be believed. The tender of Mr Waugh's file not, which is exhibit 19, was not the subject of any objection.

79. The next relevant problem identified could be described as "driving through witches hats." Exhibit 4 refers to this event. Exhibit 4 is a file note made by Ms Hannah Farr following upon a discussion on 8 January 2015. The discussion involved only Ms Farr and the plaintiff. The substance of that recorded by Ms Farr is this:

"On 21 December 2014, Mark Forwood was observed by supervisor Dan Riley (in Production 8 role at the time) to be driving through two sets of witches hats placed on the Mega Ramp in Roxburgh Pit without having called up for authorisation.

Upon investigation with Mark after the event, Mark stated that he was stressed and had been tired during the night shift and had to input two fatigue delays throughout the night. Mark stated he did not notice the hats on the ramp until such time that he was at the second set of hats and he noticed that he'd pulled up at the top of the Mega Ramp intersection alongside a hat, whilst giving way to a truck.

The supervisor completed an investigation pack including photos of the witches hats in position and determined that the hats were all standing, visible and spaced approximately 5 metres apart.

The supervisor stated that Mark had also displayed the lack of accountability for the event initially, and it took some time in the interview to reach the point where Mark admitted he understood that he had done the wrong thing by driving through the hats.

On 8 January 2015 I interviewed Mark Forwood regarding his breach of procedure, and his attitude displayed with supervisors during the investigation process. I reiterated to Mark that Mark had not followed procedure for calling up at witches hats and asked Mark what had occurred on the day of the event.

Mark stated that he did not see the witches hats until at the second step. He also stated that he was tired and stressed at the end of night shift which had likely impacted on his performance.

Mark then stated that if there had been a red triangle OCE sign in place, he would have noticed the hats and stopped. When I questioned Mark on this, Mark stated that when there is a red triangle there he knows that it's actually important and that he needs to call up, and that normal witches hats are used everywhere for all sorts of reasons. I informed Mark that this to me demonstrated a somewhat complacent attitude towards travelling past witches hats and confirmed parts of the supervisor's concern.

I explained to Mark that witches hats with or without a triangular OCE sign indicated a need to seek authorisation from a supervisor prior to travelling through. The triangular signs further help the process by indicating a specific OCE to call up, but were not an indicator of more serious concern.

I then explained to Mark that I have not heard concerns raised from supervisors regarding Mark's performance as a driller, specifically, and that all the surrounding infractions and behavioural issues were affecting his reputation and detracting from his overall performance.

Findings on capacity

161. I am prepared to accept that the plaintiff was totally incapacitated for a period following the interview on 17 February 2016. However, some change occurred after September 2017 and prior to the plaintiff’s being interviewed by Dr Bench on 27 March 2017. It is necessary for me to be arbitrary. Had the plaintiff not resorted to alcohol use, I believe he would have essentially recovered from his psychiatric illness within about nine month of the cessation of work on 17 February 2016. I am prepared to find that the plaintiff was totally incapacitated for work from 18 February 2016 until 17 December 2016.

162. The question then is, has the plaintiff had an incapacity since that time? One simple answer to that question is the fact that the plaintiff elected to take a voluntary early redundancy from the second defendant's employment on 6 May 2016. At the time that the total incapacity ends the plaintiff had withdrawn himself from the employment of the first defendant. He told me that he does not believe that he could be employed by anybody doing anything because somebody might shout at him. That to me has all the hallmarks of exaggeration and may be motivated by the plaintiff's alcoholism. However, the fact remains that this man had for many years driven in the coal mining industry heavy plant and machinery. Prior to joining the coal mining industry he had driven heavy plant and machinery in the construction business, in railway construction and, for example, he might have done or would have been able to do similar work in the road building business, for which there are many opportunities at the current time. In fact, as a Sydney motorist, far too many opportunities at the current time.

163. According to exhibit A the plaintiff would have been earning but for injury in the coal mining industry $2,692.30 per week. As at May 2016 average weekly earnings for fulltime employed adults in the mining industry was $2,780.20 taking into account overtime. Not taking into account overtime, average weekly earnings were $2,659.50, which is almost the same as what is shown in exhibit A, the plaintiff's wages schedule. As at May 2016 average weekly earnings for those in in the construction industry were $1,534.20. Of course those in the construction industry include builders' labourers, bricklayers' labourers and tradesmen such as builders, carpenters, bricklayers, plumbers and electricians, but also include those who drive plant and machinery. Doing the best I can, I believe that uninjured in the open labour market outside the mining industry the plaintiff could have been earning at all material times $1,500 per week. That is at the top end of the equation under s 11(1).

164. The question then becomes, what could the plaintiff do in his injured state in the open labour market? Even with a bad back and a painful knee, the plaintiff could drive as a courier, could drive light vans delivering e parcels and the like throughout the State. He may be able to drive trucks on the highways of the State between major centres, especially the trucks can be loaded and unloaded by forklifts or merely where he was towing a trailer loaded with container. In other words, the plaintiff could do work which did not aggravate his back or knee in ordinary trucking work. I believe the plaintiff could sell his labour for at least $30 an hour, which indicates to me an ability to earn in the open labour market about $1,150 per week. The difference is $350.

165. However, I have a discretion. That is a discretion which should be exercised in this case. The plaintiff has not really actively looked for work. He told me that he considered one position and make an application to the local council for clerical work but was unsuccessful in that regard. He could certainly do more than clerical work, in which field he has no background. When the plaintiff has not been actively looking for work, it makes his economic loss less significant. It also makes the Court's job harder. Furthermore, the plaintiff will not find any suitable work until he gives up his alcohol intake as described by Dr Bench. Doing the best I can in the exercise of my discretion under s 11(1), I believe the appropriate finding is the plaintiff's economic loss as a result of his physical condition to be $250 per week. I am not persuaded that his psychiatric problems would prevent him earning the sum of $1,150 per week. Furthermore, absent the alcohol intake, I am confident the plaintiff has fully recovered from the effects of the unfortunate interview on 17 February 2016 with Mr O'Brien.

Award

166. I have inquired of counsel for the plaintiff and the solicitor for the defendants whether any further reasons for judgment are required and I am told that none is so required.

167. For those reasons, I make the following awards against the first respondent:

1. for $14,883.75 for 15% loss of efficient use of the plaintiff's right non dominant arm.

2. for $13,000 pursuant to s 67.

168. I make the following awards against the second defendant:

1. for $1,177.44 from 18 February 2016 to 17 August 2016;

2. for $491.90 per week from 18 August 2016 to 30 September 2016;

3. for $495.60 per week from 1 October 2016 to 11 October 2016; and

4. for $403.40 per week from 12 October 2016 to 17 December 2016 pursuant to s 9; and

5. for $250.00 per week from 18 December 2016 to date and continuing pursuant to s 11(1).

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

7. $13,395.37 for 13.5% loss of efficient use of the right leg at or above the knee.

8. for $17,000 under s 67.

169. I order the second respondent to pay the plaintiff's hospital, medical and like expenses for treatment of his psychiatric condition from 18 February 2016 to 17 December 2016. I order the second defendant to pay the costs of the treatment of the plaintiff's back and right leg pursuant to s 60.

170. I order the defendants to pay the plaintiff's costs.

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Decision last updated: 26 February 2019