Newham v Tesa Mining (NSW) Pty Limited

[2023] NSWDC 634

District Court

New South Wales

Medium Neutral Citation:	Newham v Tesa Mining (NSW) Pty Limited [2023] NSWDC 634
Hearing dates:	10 March 2023
Date of orders:	10 March 2023
Decision date:	10 March 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Redemption approved.
Catchwords:	WORKERS COMPENSATION – COAL MINER – Whether sum proposed for settlement adequate – Plaintiff joined coal mining industry in NSW at age 57 – Long history of prior, significant injuries and ongoing pathology.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Charles Newham First Defendant – TESA Mining (NSW) Pty Limited Second Defendant - Ravensworth Coal Management Pty Limited Third Defendant - The Trustee for The Ravensworth Coal Trust
Representation:	Solicitors: Plaintiff – Whitelaw McDonald & Associates Defendants – Sparke Helmore Lawyers Counsel: Plaintiff – Mr Hunt, S. Defendant – Ms Beattie, L.
File Number(s):	2022/00193602
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: There is currently before me a redemption application in the sum of $40,000. The question which I must consider is whether that is an adequate amount of money to effectively redeem the employer's liability to make any payments of workers compensation to the plaintiff.

2. I bear in mind the following considerations. Professor Y.A.E. Ghabrial diagnoses a 15% loss of efficient use of the plaintiff's right arm at or above the elbow, a 22.5% loss of efficient use of his left arm at or above the elbow, a 30% impairment of his neck, a 15% impairment of his back, a 50% loss of efficient use of his right leg at or above the knee, and a 45% loss of efficient use of his left leg at or above the knee.

3. There is another assessment made by Dr Bodel, an orthopaedic surgeon in the plaintiff's case. He diagnoses a 15% loss of efficient use of each of the plaintiff's upper limbs, a 10% impairment of his neck, a 15% impairment of his back, and probably agrees with the assessments made by Dr Ghabrial about the loss of efficient use of his lower limbs. The plaintiff's solicitor asked the doctor a number of questions which required the doctor to disarticulate the lower limbs, which is a principle contrary to well established law. However, when one adds up the various assessments, they are probably equal to the overall assessment made by Professor Ghabrial.

4. Amongst other conditions, the plaintiff has undergone total knee replacement on each side; hence the assessment of a large loss of efficient use of each lower limb.

5. There are a number of difficulties, however, in the plaintiff's case. The defendant has qualified Dr Myles Coolican, an orthopaedic surgeon. Dr Coolican saw the plaintiff on 22 August 2022 and generated a report bearing the date 24 November 2022. He has this history of the plaintiff's education and employment:

"I discussed with Mr Newham his educational background and work career. He attended school at Narrabeen High and left school after year 10. After school, he mostly worked with horses, initially breaking horses, but then as a racehorse trainer, and he occasionally rode track work. He joined the mines over 20 years ago initially in Queensland in 2000 and 2001, and then worked in Darwin in a fly in/fly out situation before moving to the Hunter Valley nine or ten years ago. He has been in the mines for approximately 16 years of work. He indicated he learned how to drive plant early in his time in the mines."

Dr Coolican also took a sporting history. The plaintiff played rugby league in high school and, after leaving school, he played for Ourimbah in the second row. He continued with his rugby league playing until the age of 23. He had to give up playing rugby league because his work with horses required him to work seven days a week.

6. According to the history taken by Dr James Bodel, the plaintiff had been a racehorse trainer and had also ridden track work between the age of 22 and the age of 50. He raced horses in the country between Gosford and the Gold Coast, and also for about three and a half years at Warwick Farm in Sydney.

7. One other piece of history tells me the plaintiff joined the coal mining industry on 7 December 2007, but the plaintiff said that that was in Queensland. He does not appear to have joined the coal mining industry in New South Wales until June 2010 when he was 57 years old. Most coal miners who appear in this Court have joined the industry in their teens or their 20s, and one can understand that the rigors of, in particular, underground mining throw various stresses on the spine and the joints of the body. However, the plaintiff only joined the coal mining industry in New South Wales at the age of 57, and joined and worked in an open cut mine driving plant.

8. The plaintiff's bilateral knee replacements were performed by Dr Justin Roe, an orthopaedic surgeon who also is an Associate Professor. Dr Roe noted that the plaintiff injured his left knee when he was "younger" when he was bucked off a horse and his knee dislocated, and he was in plaster for about two months. That can only have been when the plaintiff was working in the horseracing or horse training industry. By the time the plaintiff saw Dr Roe on 16 June 2016, there was an obvious varus alignment of the knees, and X-rays clearly showed bilateral medial and patellofemoral compartment arthritis of each knee. On 14 June 2017, the plaintiff's general practitioner, Dr Simon Marrable, wrote a referral letter to Dr Christopher Dunkley in which Dr Marrable referred to "significant bilateral degeneration of his knees." At that time, Dr Marrable pointed out that the plaintiff was a "fit, healthy, active man working long shifts as a mine operator and competing at a high level in horse riding." There are other descriptions of injuries when the plaintiff was thrown from horses, including one when he landed on his buttocks and may have injured his coccyx.

9. Everything points to the plaintiff’s having widespread degenerative conditions in his body but there is very little, if any, evidence that the problems with his body assessed by Professor Ghabrial and Dr Bodel have anything to do with his employment. For example, Dr Coolican said this about the plaintiff's back condition:

"Mr Newham's symptoms in his lumbar spine are consistent with mild degenerative lumbar disc disease. With the right shoulder, he is a grade VI dislocation of the acromioclavicular joint with extremely prominent lateral clavicle. This is likely to have occurred with the described fall from a horse in 2003, managed at Liverpool Emergency Department. It is likely that this was not a shoulder dislocation but a dislocation of the acromioclavicular joint which have remained unreduced. He otherwise has good function of both shoulders, with some weakness of the supraspinatus on the left side that could be consistent with a rotator cuff injury. Both elbows have full movement with prominent olecranon exostoses and prominent olecranon bursae more so on the left. There is no significant abnormality of either wrist or hand."

When Dr Coolican discussed the plaintiff's knees, he pointed out that the plaintiff did not give him any history of any significant injury to inter alia his knees.

10. The defendant has also qualified Dr Loretta Reiter, a rheumatologist. As far as the plaintiff's low back is concerned, she believed that there may have been an aggravation of preexisting underlying constitutional age related degenerative lumbar spine disease. As far as the plaintiff's neck is concerned, she said this:

"There is no history of trauma or injury to his cervical spine when he was at work, so his current symptoms of mechanical pain is due to his own, underlying, constitutional, age related degenerative cervical spine disease. He clinically has an episode C6 nerve root impingement when he was on holiday in the USA, with symptoms apparently starting when he was on the plane, which bears no relationship to his employment. As a consequence of this, he has residual pins and needles in his right index and middle fingers."

Like Dr Coolican, Dr Reiter pointed out that the problem with the right shoulder commenced when the plaintiff fell from a horse.

11. At most, all the medical evidence would persuade me is that the plaintiff may have aggravated a preexisting condition in his low back in the event of which he has told Dr Bodel and the defendants' doctors, an injury to his low back on 17 September 2018. However, clearly, the plaintiff's shoulder condition and the condition of his knees is completely unrelated to the plaintiff's work in the coal mining industry in New South Wales. In the circumstances, the sum proposed for redemption is reasonable.

12. I approve the redemption. By consent, orders in accordance with short minutes of order which I have initialled and left with the papers.

…….

Decision last updated: 16 May 2024