McKendry v Ravensworth Surface Operations Pty Limited

[2024] NSWDC 163

District Court

New South Wales

Medium Neutral Citation:	McKendry v Ravensworth Surface Operations Pty Limited [2024] NSWDC 163
Hearing dates:	16 February 2024
Date of orders:	16 February 2024
Decision date:	16 February 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption. By consent, orders in accordance with short minutes of order, which I have initialled and placed with the papers.
Catchwords:	Haemochromatosis.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – David McKendry Defendant – Ravensworth Surface Operations Pty Ltd
Representation:	Solicitors: Plaintiff – Slater & Gordon Defendant – Sparke Helmore Lawyers Counsel: Plaintiff – Hickey, C. Defendant – Beattie, L.
File Number(s):	2022/00167152
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: There is currently before me a redemption application in the sum of $85,000.00.  I have been told by learned counsel for the worker that weekly payments of compensation are claimed since 12 April 2022, however from what I have read, it is more likely that the claim should be from 26 April 2022. If the plaintiff's only claim were for weekly payments from April 2022, that might be a realistic sum to redeem his future rights.  However, redemption also includes his rights accrued up until the time that he claims the weekly payments of compensation.  If I were to accept at face value the assessment made by Professor YAE Ghabrial in his report on 14 June 2023, which is exhibit A‑A, one would think that he would be entitled to much, much more because of his entitlement to hospital and medical expenses, and lump sum compensation for pain and suffering, anxiety and distress, pursuant to section 67 and for lump sum compensation under section 66, the loss of use of various body parts.  For example, Professor Ghabrial records this as the plaintiff's surgical history:

"1.  Arthrodesis of the left ankle on 12 June 2013 by Dr Kim Slater.

2.  Release of the right ankle on 28 September 2016 by Dr Kim Slater.

3.  Bilateral total knee replacement by Dr Geoff Workman on 12 October 2017.

4.  Total hip replacement by Dr Workman on 13 December 2018.

5.  Right shoulder replacement by Dr Minas Petrelis on 11 May 2022.

6.  Lumbar spine fusion at the L4/5 level by Dr Simon Abson on 20 September 2022."

2. However, there was no evidence put before me from Dr Slater, Dr Workman, Dr Petrelis or Dr Abson, except some extracts thereto referred to in the medical evidence tendered by the defendant.  The plaintiff's work history is best summed‑up by Associate Professor Neil McGill, a consultant rheumatologist in his report of 7 December 2022, which forms part of exhibit 1‑1.  It is this:

"He left school following year 12.  He completed an apprenticeship as an electrician with the Electricity Commission of NSW.  He continued with that organisation as a qualified electrician for about six months.  He then worked for Joy Engineering at Kurri Kurri (producer of shuttle cars and miners) for four months.  He then (1982 or 1983) moved to work in underground mines, initially at Pelton, Ellalong.  After nine months, he was retrenched.  He then worked for Liddell State Mine for about nine months, and then Lamington No 2 for about nine months.  He returned to Pelton, Ellalong, where he continued for about ten years.  At each of the sites, his work as an electrician was a very similar.

He then worked at Lamington Open‑Cut Mine.  Over the next 13 years, he worked at three Open‑Cut Mines.  He was often involved in separating and reattaching large cables.

He moved to Ravensworth Mine (better money) and initially the nature of the work was essentially the same.  As the output of the mine increased, his role became more that of an auto‑electrician working on the electrical components of large vehicles and also maintaining and repairing electrical infrastructure on site.

Following each of his orthopaedic procedures up until right shoulder replacement, he returned to his normal work duties.  His knee symptoms before and after replacement made it difficult to squat and kneel, but he was able to do so.  As his right shoulder gradually deteriorated, he minimised heavy lifting with the right upper limb.

He ceased working on long service leave, then had his right shoulder replacement and has not returned to work since that time and thus has not worked for about one year.  After right shoulder replacement, he had low back surgery.

The normal duties he performed over the years included climbing over machines, tightening and untightening bolts using a drill, use of spanners and other tools, lifting large cables with the help of others to join or separate the cables and walking on uneven ground."

3. One can accept that the work that the plaintiff did both underground and in the open‑cut mines would have placed stress and strain on the joints of his body.  However, there has been a major complication.  At the commencement of his report, Dr McGill pointed this out:

"His only non‑musculoskeletal disorder is haemochromatosis, first suspected by Dr Kim Slater, his ankle surgeon, and subsequently confirmed.  He saw a haematologist in Newcastle and received weekly venesection for about two years and since then he has had maintenance venesection every three or four months supervised by his general practitioner, Dr Sales.

He has had symptoms related to osteoarthritis involving most regions of the body including the hands, wrists, shoulders, hips, knees, ankles and feet.  He has also had low back problems due to degenerative change.  As these health problems are directly related to his right shoulder problems, they will be considered below.

When he was found to have haemochromatosis, his family members were screened.  As expected, his parents were both carriers.  His mother received knee replacements in her late 50s.  His father has not required joint replacement.  They are both alive in their late 80s."

4. The opinion of Dr Associate Professor McGill is best contained in the first three paragraphs of his report.  It is this:

"This 63‑year‑old man has very widespread osteoarthritis on a background of haemochromatosis, which was recognised when he presented with advanced bilateral ankle arthritis.  Although venesection reduces the risk of other organ involvement (liver, heart, endocrine), it unfortunately does not make any difference to the progressive degenerative change which occurs in joints in haemochromatosis.  He has developed advanced osteoarthritis of both ankles, both knees (both requiring replacement), right hip (replaced), right shoulder (replaced) and the small joints of both hands.  He also has at least moderate osteoarthritis in the wrists, elbows, left hip and probably left shoulder.

He experienced exacerbations of right shoulder symptoms as a result of work activities.  Based on the history he today provided and the documentation, the work events were responsible for relatively brief increases in pain.  The minor work events clearly did not cause his right glenohumeral joint osteoarthritis and would not have influenced the progress of the disease.

I agree with the conclusion Dr Posel that the development and progression of his right glenohumeral osteoarthritis was not influenced by the work incidents or his work in general, and was due to haemochromatosis arthropathy which has resulted in widespread osteoarthritis affecting most of his joints."

5. The plaintiff was seen by Dr Daniel Posel, an orthopaedic surgeon on 30 March 2022 prior to the surgery that was eventually practised by Dr Minas Petrelis on 27 April 2022.  Under the heading "background", Dr Posel said this:

"A decade ago, David McKendry, was diagnosed as suffering from haemochromatosis.  Initially he had venesections once a week and such are now performed three monthly.

As a consequence of his haemochromatosis, he has developed severe degenerative change in many of his joints.  He had previously undergone left and right ankle fusions, left and right knee replacements, and a right total hip replacement, all as a private patient.

Updated radiologic investigations reveal moderate osteoarthritis of the left hip which remains relatively asymptomatic.

He has significant degenerative change in his cervical spine, thoracic spine, and lumbar spine.  There is marked degenerative change at the lumbosacral junction.  David McKendry stated he has sought an orthopaedic spinal surgeon opinion and surgery to his lumbar spine has been recommended."

6. Dr Posel was mainly concerned with the liability of the defendant employer to pay for the cost of the surgery proposed to the plaintiff's right shoulder.  On page 6 of his report, Dr Posel quoted a matter referred to by Dr Petrelis, the doctor who was to carry out the surgery on the plaintiff's right shoulder.  Dr Posel also quoted the radiological appearances of the plaintiff's right shoulder, both the CT scan of 24 February 2022, and the MRI scan of 25 February 2022, which both confirmed severe primary glenohumeral degenerative change in the plaintiff's right shoulder.  Dr Posel took a very detailed history, not only of the plaintiff's medical course, but also of the injuries that the plaintiff reported to his employer over the years to his right shoulder.  His opinion can be summarised in this fashion:

"By the age of 59 years, David McKendry had already undergone bilateral ankle fusions, bilateral knee replacements, a right hip replacement, and noted as having at least moderate osteoarthritis of his left hip.  Such is distinctly unusual in the absence of injury.

Dr Petrelis stated:  'he had a number of joints replaced, which the haemochromatosis would have been a contributing factor.'

I would put it to Dr Petrelis that David McKendry's haemochromatosis was the only diagnosed 10 years ago, and almost certainly, the absence of any sporting injury, the requirement for this multiple lower limb joint replacement, relates specifically to his haemochromatosis.

David McKendry also has degenerative changes in his entire spine and clinically, degenerative changes in the MP joints of all fingers and the base of both thumbs.  He has Heberden's [nodes], affecting the DIP joints of at least his right index and little fingers.

Although David McKendry reports no loss of function of his left shoulder, I noted a nominal loss of range in all planes, and David McKendry, in fact, reported glenohumeral joint discomfort on the left on a pain scale of 4‑5/10.  Although no radiological investigations have been performed on the left shoulder, I suspect there are at least early degenerative change present in the left shoulder glenohumeral joint.

David McKendry has long standing osteoarthritis in his right shoulder.  Although he played rugby league until the age of 30 years at the position of full back, he does not report a right shoulder injury.  Almost certainly, therefore, the right shoulder osteoarthritis, which has been present for many years, also relates to his constitutional problem of underlying haemochromatosis.  Given the advanced degenerative change of glenohumeral joint evident on the initial X‑rays of 3 May 2021, this right shoulder osteoarthritis has been present for many years, and a gradual deterioration with time.  Even in the absence of any work incident/injury, David McHenry would have required a right shoulder replacement at the same stage of his life."

7. The medical opinions of Dr Posel and Dr McGill are both convincing.  I could not be persuaded on the balance of probabilities that any of the six surgeries recounted by Dr Ghabrial in his report on 14 June 2023, were causally related to any injury arising out of or in the course of the plaintiff's employment with the current defendant or any of his various employers in the coal mining industry in his long and interesting career in the coal mining industry.  In those circumstances, I approve the redemption. By consent, orders in accordance with short minutes of order, which I have initialled and placed with the papers.

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Decision last updated: 10 May 2024