O'Donnell v Elcom Collieries Pty Ltd

Case •

[2017] NSWDC 462

•

15 November 2017

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: O’Donnell v Elcom Collieries Pty Ltd & Others [2017] NSWDC 462
Hearing dates: 13, 14 November 2017
Date of orders: 15 November 2017
Decision date: 15 November 2017
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

Awards at [89] to [94]

Catchwords: COAL MINERS WORKERS COMPENSATION – Claims for weekly payments, lump sums and hospital and medical expenses – Plaintiff worked as an underground coal miner from age 17 on 1 February 1968 to 6 April 2014 (45 years) – Numerous injuries – Consideration of medical evidence – Consideration of numerous claims for impairments and losses
Legislation Cited: Workers Compensation Act 1926
Workers Compensation Act 1987
Cases Cited: KB Hutcherson Pty Limited v Correia (1995) 183 CLR 50; 11 NSWCCR 213
Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571
Category:Principal judgment
Parties: John William O’Donnell (Plaintiff)
Elcom Collieries Pty Ltd (First Defendant)
Powercoal Pty Ltd (Second Defendant)
Centennial Newstan Pty Ltd (Third Defendant)
Panloy Pty Ltd (Fourth Defendant)
Sugarloaf Mining Pty Ltd (Fifth Defendant)
Centennial Fassifern Pty Ltd (Sixth Defendant)
Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr B Odling (Defendant)

  Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendant)
File Number(s): RJ 35/2016
Publication restriction: Nil

Judgment

  1. HIS HONOUR: The plaintiff John William O'Donnell was a coal miner. He claims weekly payments of compensation from 7 April 2014 to 1 March 2016. On 1 March 2016 the plaintiff achieved his 66th anniversary. His claim for weekly payments must, as a matter of law, finish on the day before his 66th birthday. He also claims lump sum compensation under s 66 for the permanent impairment of his back, the permanent impairment of his neck, the loss of efficient use of each of his arms at or above the elbow, the loss of efficient use of each of his hands, the loss of efficient use of each of his legs at or above the knee and also the loss of efficient use of each of his legs at or below the knee and a consequential lump sum for pain and suffering anxiety and distress resulting from those impairments and losses.

Employment history

  1. The plaintiff left school at the age of 16 years and joined the Post Office. Later he had worked as a labourer with the Wire Rope Works company at Waratah in the Lower Hunter Valley. On 1 February 1968 the plaintiff joined the coal mining industry. He was then 17 years old. A month and a few days later he achieved his 18th anniversary. He first worked at the Mount Sugarloaf Colliery. He started there, as I said, on 1 February 1968. He finished up there in 1976 and moved to the West Wallsend Number 2 Colliery where he took up employment with J and A Brown and Abermain Seaham Collieries Limited. On 15 January 1979 he moved on to the Stockrington Number 2 Colliery. On 31 January 1979 he went to the Myuna Colliery. On 5 December 1979 he commenced working at the Newstan Colliery. The plaintiff worked at the Newstan Colliery until 22 May 2009 employed by either the first, second or third defendants. He started there again in November 2011 and worked on until 6 April 2014 in the employment of either the fifth or sixth defendants. He brings these proceedings against the employers who employed him at the Newstan Colliery. The plaintiff had other employment with the fifth defendant but that was outside of New South Wales in the main.

Injury history – early years

  1. As could have been expected, the plaintiff sustained a number of injuries over the years to various parts of his body. The first major event which occurred was an injury to his left ankle on 10 April 1981. All of the plaintiff's employment in the coal mining industry was underground. By September 1980, when he was 30 years old, the plaintiff qualified to be a mine deputy and has worked as a mine deputy ever since. The first major injury which befell him was when he was working as a mine deputy. On that day he was unloading mesh from the top of a pod and slipped between some props and caught his left leg twisting his left ankle. The plaintiff told me that he ended up hanging off the side of the pod. All told he believed that he was off work for eight weeks.

  2. The medical evidence before me includes a series of plain X‑rays of the left lower limb performed on 10 April 1981, 22 May 1981 and 11 June 1981. The first X‑ray is reported as showing an undisplaced crack fracture of the medial malleolus. By 11 June 1981 the X‑ray showed early signs of bony union of the fracture of the medial malleolus. However at that time the fracture line was still faintly visible. However the position of the joint was still satisfactory. There had been no displacement. The radiologist commented that the bony union of the fractured malleolus was not then totally complete.

  3. On 18 December 1987 the plaintiff reported an injury to his neck. He was pulling some form of cable in the mine when he strained his neck. He first reported a lower back injury on 5 July 1988 when he was rolling a cable spool out of the bucket of a piece of machinery when he felt lower back pain. Thereafter there have been a number of reported injuries to the plaintiff's low back.

1990s

  1. On 4 September 1990 he was lifting a 60 litre drum which was half full of oil and when he straightened up he felt pain in his lower back. That saw him commence physiotherapy treatment at Cardiff. The plaintiff was subsequently to have much physiotherapy provided to him over the years by the Joint Coal Board or Coal Services Health. On 12 September 1990 just over a week later the plaintiff underwent a radiological investigation of his thoracolumbar spine and sacrum. The only abnormalities noted are these:

"There is mild thoracic scoliosis with convexity to the right and lumbar scoliosis convex to the left. There is moderate osteophytic spurring of the apposing body margins at the L3/4 level but no advanced displace narrowing. There is minor degenerative lipping also of the mid‑thoracic vertebral bodies."

A scoliosis can be caused by muscle spasm reflecting an organic injury or merely back pain brought on in some fashion. However a scoliosis can also be congenital. A further X‑ray was performed on 20 May 1991. That was after a further injury to the plaintiff's low back on 15 May 1991. He again was assisting the unloading from a pod of a drum of oil which was 60 litres in capacity. The plaintiff felt a pain in his lower left back which could be described as a “rip”. He took one week off. The X-ray of 20 May 1991 is said to show no change since the earlier X‑ray of 12 September 1990.

  1. On 28 January 1994 the plaintiff underwent a Joint Coal Board health screen. The nurse who took the history obtained a history of the plaintiff’s pinching a sciatic nerve in 1991. The plaintiff answered the questionnaire that he had lost more than two consecutive weeks at work because of back pain and that he had seen a specialist because he had had back pain. However who the specialist was has not been established.

  2. On 30 September 1993 the plaintiff injured his left shoulder. That was one of a number of injuries to that part of his body. On 15 August 1994 the plaintiff injured both his neck and his lower back. He was being transported to the coalface in a man transport when the vehicle struck a hole in the road causing it to bounce and causing the plaintiff to strike his head on the roof of the man transport and then to land heavily on his buttocks.

  3. There was a further injury to the back on 7 October 1994 when the plaintiff was assisting to lift a water barrel when he felt a sharp pain in his right side which he thought radiated to his lower back. The plaintiff described that in his evidence as when he "busted my stomach". There appears to have been a problem with diagnosis at the time. It appears the plaintiff was taken to a local doctor and then was taken to the John Hunter Hospital Casualty Department and he later had an intravenous pyelogram which was normal. He was referred to Dr T A Kelly who appears may have been a general surgeon. Dr Kelly said this in a report of 24 October 1994:

"On examination today there was a lumpy area in the right lower para rectus abdominis position which gave a cough impulse and I felt the possibility of a right Spigelian hernia was quite high. There were no inguinal or femoral herniae and at this stage the only way to diagnose this is to perform a laparoscopy and if it is present, repair it laparoscopically. I have organised Thursday 3 November 1994 at Toronto Private Hospital for laparoscopy and possible repair of his Spigelian hernia".

However the plaintiff did not turn up to undergo that piece of surgery. The plaintiff did return to see Dr Kelly on 5 April 1995, almost six months later, and was still complaining of a burning sensation in his right groin. Dr Kelly also suspected that the plaintiff had left‑sided sciatica with lumbar pain. Nevertheless, Dr Kelly thought the burning sensation in the right groin was due to local nerve entrapment of the L1 nerve in the anterior abdominal wall. However he did not think that then required surgical repair.

  1. Because of the complaints made to him, Dr Kelly organised for a CT scan of the lumbosacral spine to be performed on 7 April 1995. That is said to show a central and left posterolateral disc herniation at L5‑S1. There was also associated with it a congenital spinal stenosis which could aggravate the effects of the herniated disc. The radiologist Dr Lees went on to say this, "The diameter of the spinal canal reduces from above downwards, the reverse of the normal, a feature of the congenital spinal stenosis". The scan is also said to show degenerative change in sacroiliac joints which had been bridged by osteophytes.

  2. It is important to note that a congenitally narrow spinal canal would render the plaintiff more susceptible to disc protrusion or disc herniation because the gap to be bridged by the herniated disc material would be much smaller than in a person with a normally formed spine. When confronted with that radiological investigation, Dr Kelly expressed the view that the state of the plaintiff's low back explained his complaint of left‑sided sciatica. However he was also of the view that the plaintiff's symptoms in his right groin were caused by local nerve entrapment and he was going to arrange for another doctor, an anaesthetist, to inject the affected area to see if that would settle the plaintiff's symptoms. In a post‑script dated 14 April 1995 Dr Kelly pointed out that the nerve detection studies confirmed that the plaintiff's right groin pain was indeed caused by some local nerve entrapment.

  3. Dr Kelly subsequently wrote a medico legal report on 13 October 1997 commenting upon the treatment which he afforded to the plaintiff in 1994 and 1995. The doctor thought that the plaintiff's right‑sided groin pain would gradually settle and would not impose any restriction on the plaintiff's ability to work. The plaintiff has not told me of any such ongoing restriction because of this discreet pain that he had in his right groin. However Dr Kelly was also of the view that the plaintiff had left‑sided sciatica due to a disc protrusion at L5‑S1.

  4. Dr Roger Rowe saw the plaintiff on 11 May 1995 for Coal Mines Insurance. He recorded that the plaintiff did not have the surgery proposed by Dr Kelly and that the plaintiff's symptoms had settled and that he did not need any time off work. However the plaintiff did complain to Dr Rowe of an ache in the right iliac fossa from time to time but it lasted only 30 seconds. However the plaintiff also described to Dr Rowe low back ache with paraesthesia throughout the whole of his left leg which the plaintiff told the doctor usually occurred whilst lying or standing after a prolonged period of walking. I should point out that paraesthesia throughout the whole of the left leg is not anatomically based but may reflect some form of referred symptoms from a tetchy low back condition. Dr Rowe went on to point out that the plaintiff had degeneration at the lumbosacral level of his back which caused his low back ache and left leg symptoms. He thought that was totally unrelated to the October 1994 incident but minds may differ on that opinion.

  5. On 22 November 1996 the plaintiff injured his right ankle when he stepped off a bolting machine and sprained his right ankle. The plaintiff told me from that time onwards he needed to wear an ankle support. Exhibit W is a letter from a physiotherapist at the Toronto Physiotherapy centre at Toronto. It tells me that on 22 November 1996 the plaintiff sustained a complete rupture of the lateral ligament complex in his right ankle. The letter goes on to tell me this:

"An ankle injury of this severity results in gross ankle instability, which for a minimum of six weeks requires substantial support to:

(a) prevent further joint damage

(b) allow for scar tissue formation in a shortened range, to regain stability

(c) augment lost proprioceptive reactions.

For these reasons John taped his ankle constantly for six weeks using Fixomull hypoallergenic tape as an under‑wrap to protect his skin. He was also supplied with an ankle training brace to use over the top of his tape for a very high‑risk activities, e.g. return to work with uneven, unstable ground. I am sure you will no doubt agree that these items formed an important part of John's rehabilitation, and early return to work. Incidentally, John now has achieved a stable ankle, and has thus avoided the costs associated with reparative surgery." [Emphases contained in the original]

  1. On 13 February 1997 the plaintiff underwent a further Joint Coal Board occupational health screen. That recorded ongoing back pain which increased when he sat for too long a period. There was also reference to the plaintiff's right ankle injury which had put him on light duties for five weeks.

  2. In 1997 the plaintiff took proceedings in the Compensation Court of New South Wales seeking lump sum compensation for 12% permanent impairment of his back and 5% loss of efficient use of the left leg at or above the knee. That claim was a modest one when one considers that there was evidence available that the plaintiff's impairment and loss were much greater. However that may well be because proceedings were commenced prior to obtaining the evidence to which I have just alluded.

  3. On 9 October 1997 the plaintiff was seen by Dr Leon Kleinman. Dr Kleinman accepted that the plaintiff had injured L5‑S1 disc and that disc injury was associated with congenital spinal stenosis. He reached the view the plaintiff had a 30% impairment of his back and a 15% loss of efficient use of his left leg at or above the knee. As far as causation was concerned, Dr Kleinman expressed this view:

"A CAT scan of his lumbar spine on 7 April 95 shows that he has got a disc prolapse at L5 on the left in the midline, a quite significant prolapse impinging on the S1 nerve root. He has got a rather small spinal canal associated with this. He has had X‑rays of his lumbar spine taken on 20 May 91 and these showed narrowing of the lumbosacral disc. He had an X‑ray of his lumbar spine done on 12 September 1990. This didn't show the same narrowing and therefore the first injury obviously initiated degenerative changes in the lumbar spine which became apparent at the time of the second injury but the significant injury in terms of the disc prolapse I believe is one in 1994 which has left him with both back ache and sciatica".

The only problem with that opinion is that the plain X‑rays of 12 September 1990 and 20 May 1991 show the same thing: disc degeneration at L3-4 with no change in the interim. However it is clear that the CT scan of 7 April 1995 does show a problem at the L5‑S1 disc which means that that problem could have occurred either in any of the earlier injuries because such appearances take time to show up radiologically. However the CT scan of 7 April 1995 was almost six months after the injury of 7 October 1994 and therefore it is possible that he injured the L5‑S1 disc then, although it is possible that he injured it in either 1990 or 1991.

  1. The proceedings in the Compensation Court of New South Wales were settled on 27 October 1997 at Newcastle. His Honour Acting Judge Moroney entered up an award for 12% impairment of the applicant's back and 5% loss of efficient use of the applicant's left leg at or above the knee and made an award under s 67 for $10,513.15. It appears that the parties probably agreed to reach a lump sum settlement amounting to $25,000 in total.

  2. On 26 April and 29 April the plaintiff sustained injuries to his left shoulder. The first was when he took the weight of a Panther Air leg drilling machine and strained his left shoulder. On 29 April a drill stuck in clay causing a wrenching injury to the plaintiff's left shoulder. On 5 May 1998 he underwent a plain X‑ray of his left shoulder. That was said to show prominent spurring from the inferior outer border of the acromion on the left‑hand side together with mild degenerative changes affecting the acromioclavicular joint. For such changes to show up on plain X‑ray they clearly predated the events of April 1998. It probably resulted from some earlier injury that the plaintiff had sustained to his left shoulder whilst doing underground coal mining work. Ultrasound of the left shoulder performed on 7 May 1998 was said to show moderate thickening of the subdeltoid bursa. It was thought that this reflected inflammatory changes.

  3. On 30 June 1998 Dr Louise McKinnon prescribed physiotherapy for the plaintiff's left shoulder condition. Eventually the plaintiff was referred to Dr Daniel Posel, an orthopaedic surgeon, who practices at both Charlestown and Toronto. Dr Posel saw the plaintiff on or about 7 July 1998. He thought the plaintiff's left shoulder showed evidence of supraspinatus tendonitis with impingement with a click at 90° of abduction. He injected the subacromial space with a local anaesthetic which gave the plaintiff good relief. He thought that he could continue with his usual duties. A number of months later the plaintiff was seen by Dr Roger Rowe for the Coal Mines Insurance. Dr Rowe recorded that the injection gave the plaintiff complete relief for a number of weeks. The plaintiff had stopped having physiotherapy two weeks before seeing Dr Rowe on 29 July 1998 because he had gone on holiday. Dr Rowe thought the plaintiff may need further physiotherapy if his symptoms did not resolve or that he might require a repeat injection from Dr Posel. However Dr Rowe noted that the plaintiff was not keen to undergo further injection.

  4. On 26 November 1998 the plaintiff attended upon the West Wallsend Medical Centre and was seen by Dr McKinnon. She subsequently went on extended leave. On 26 November 1998 the plaintiff was reported to be complaining of pain in both ankles after walking on unstable ground. A doctor at the West Wallsend Medical Centre pointed out that the plaintiff previously had injured his left ankle at work in 1981 and had sustained an injury to his right ankle in 1996.

  5. However on 19 August 1999 the plaintiff sustained another injury to his left ankle when hanging cables and slipped in the mud, twisting his left ankle. He underwent plain X‑ray on the following day. Dr Stuart Slater reported that the X‑ray showed a small avulsion fracture of the lateral aspect of the cuboid bone. The same X‑ray recorded the old fracture of the medial malleolus and by that time there were prominent degenerative changes in the ankle joint and the talonavicular joint and also in the TMT joints [probably talometatarsal joints]. Dr Slater also thought there was a moderate sized effusion of the ankle joint at the time he carried out plain X‑ray.

  6. At a health assessment carried out on behalf of the Joint Coal Board on 3 December 1999, it was noted that four months previously the plaintiff injured his ankle and that there was an injury to a ligament and also a small bone fragment pulled off the bone. The history goes on to say that the ankle was strapped and the plaintiff lost no time from work and that he was then coping well. Unfortunately the medical history refers to the right ankle but clearly means the left ankle. The plaintiff was nevertheless was working on with his low back pain and his referred pain from the low back with the continuing problems in both of his ankles and with the continuing problem at least in his left shoulder.

2000s

  1. However he reached the point where he could no longer put up with the symptoms in his left shoulder and was referred back to Dr Posel. In a report of 8 February 2000, Dr Posel said this:

"John complains of ongoing discomfort in his left shoulder. He has had no further specific injury. John has been putting up with his shoulder pain over the past few years. He has been having physiotherapy by the [Joint Coal Board] at the Colliery on and off for the past two years with some relief, but felt the situation had plateaued some time ago. He is also having chiropractic treatment to the left shoulder. John reports ongoing discomfort with overhead activities, discomfort with the left arm in such a position, and difficulty in sleeping on the left side. John feels his right shoulder is now a little overused".

Three things should be noted at this stage. Firstly, the plaintiff is right‑handed, so the complaints were about his non dominant shoulder. Secondly, they were causing him to experience extra strain on his right shoulder because he had to compensate with his dominant arm for the disability in his non dominant arm. Thirdly, the plaintiff also told me that the chiropracty which he was undergoing was being provided to him by a gentleman from Canada who he has described as a "good bloke" and whose ministrations were such that the plaintiff attended upon the chiropractor's rooms at Adamstown in addition to undergoing the ministrations at the mine.

  1. Dr Posel said that his findings were, "essentially similar to that of July 1998", but when one reads them it is clear the symptoms had grown worse. There was now some alteration in the outline of the long head of the biceps muscle contour. There was also a mild reduction in the power of the supraspinatus muscle which the doctor thought could be related to pain. He arranged for the plaintiff to undergo arthroscopic acromioplasty on 16 February 2000. However, before Coal Mines Insurance would pay for that, arrangements were made for the plaintiff to be reviewed by Dr Roger Rowe on the day before the surgery was practiced.

  2. Dr Rowe recommended to Coal Mines Insurance that it accept liability for an ongoing aggravation of preexisting degenerative pathology in the plaintiff's left shoulder. He expressed the view the plaintiff would be unfit for the full work of a deputy for about three months following the surgery.

  3. The surgery was practiced at the Warners Bay Private Hospital on 16 February. A number of things were found by Dr Posel including that the long head of the biceps tendon was deficient and there was only a residual 1‑centimetre stump. It was necessary to debride that stump with a shaver. The plaintiff has had no power in his left biceps since this time at the latest. At arthroscopy, the rotator cuff was found to be intact. That is important because subsequently it has been found to be otherwise. At six weeks post‑surgery, both Dr Posel and the plaintiff were pleased with the plaintiff's progress. The doctor reviewed the plaintiff three months after surgery. What Dr Posel said in his report of 9 May 2000 is of great moment because it shows the plaintiff's dedication to his work:

"John is very happy with his progress. He is back at work on normal duties. Recently, he has been working double shifts and last weekend strained his left shoulder. Fortunately on review today, besides tenderness over the rotator cuff, rotator cuff power is good. The abduction arc is smooth. There is no evidence of recurrent impingement problems. Performing double shifts and heavy manual labour so soon after an arthroscopic acromioplasty is a little 'dangerous', and John now appreciates such. I explained that he is not 'invincible'! I am sure John's current left shoulder pain, which is probably related to a flair up of his supraspinatus tendonitis will settle over the ensuing few weeks. I have asked him to return for a review if he has any concerns regarding his shoulder function in six weeks' time".

However it appears that there was no such return to see Dr Posel.

  1. In 2001 and 2002 he had physiotherapy to both his back and his neck. On a date that I read as 24 June 2002, but was read by learned counsel for the plaintiff Mr O'Rourke as 21 June 2002, the plaintiff was treated for left knee pain by the Joint Coal Board/Coal Services Health physiotherapist. The plaintiff gave a history that he was walking in the previous week and he tripped on a spike and some force applied to his left knee. The physiotherapist notes are difficult to decipher. The diagnosis made was an acute strain of the left medial collateral ligament. It would appear that there were further physiotherapy attendances for that left knee problem on 25 June, 27 June and 2 July 2002. These records are interesting because they are the only records which indicate the plaintiff may have injured his left knee at work and how it may have occurred.

  2. The plaintiff injured his neck and back again, on 23 June 2003 and then had physiotherapy treatment for his neck. The incident was when a dolly car was going down a drift and stopped extremely suddenly throwing the plaintiff forward into the seat ahead of him. The plaintiff told me that he smashed his helmet in that event. He went and was treated for neck pain at Coal Services Health physiotherapy.

  3. At a medical assessment for Coal Services Health on 13 October 2003, there was reference to the shoulder surgery practiced in 2001 and ongoing neck problems. The notes also record, "Visits GP regularly for review of BP". That might be a reference to back pain but it is more likely to be a reference to blood pressure because it is followed with a note that the plaintiff underwent pathology tests three weeks earlier.

  4. I am pressed for time and therefore I will not detail the further injuries that the plaintiff had in the mine, which, as one can understand, were "legion". However the plaintiff told me that in 2004 he was sent to see a Dr Tony Isaac. I have before me a radiological report addressed to Dr Anthony Isaac by Dr John Lewis. The radiological report concerns the plaintiff's neck. The clinical notes refer to neck and occipital pain and refer to a "previous whiplash injury" which is often a way of describing injuries suffered by miners when they hit their heads, which are encased in helmets, on either low ceilings or items projecting from the ceiling of the mineshafts such as roof bolts, mesh, vent tubes and cables and other apparatus that are hung from the roof of a mineshaft. The radiological report is this:

"There is degenerative anterior slip of the C4 vertebral body by approximately 3 millimetres on C5. The cervical vertebral alignment is otherwise normal. The upper‑mid cervical facet joints are degenerative, and there is mild disc space narrowing at C5‑6. There is some bony narrowing of the intervertebral foramina bilaterally from C2‑3 to C4‑5, predominantly related to facet joint change. The odontoid peg and the atlantoaxial joints define normally. There are no cervical ribs".

The plaintiff told me that he was advised by Dr Anthony Isaac to give up work but he would not accede to that suggestion. There was clearly moderate osteoarthritis at the facet joints in the cervical spine and probably leading to the spondylolysis of C4 on C5.

  1. There was little that occurred between the end of 2004 and the plaintiff's services with the third defendant being terminated. The plaintiff was asked whether he took a voluntary redundancy on 22 May 2009 and his answer was that, "We all got paid out". It would appear that there was a general retrenchment at the Newstan mine by its then operator, the third defendant. The plaintiff's answer to me indicates that he believed he had no option than to take the voluntary redundancy and his workmates felt the same.

  2. On 1 June 2009 the plaintiff commenced employment with Panloy Proprietary Limited trading as Mynetrades. That defendant no longer exists but appropriate orders were made by Assistant Registrar O'Connell on 21 April 2017. That company was essentially a labour hire company working in the mining industry. The plaintiff's first job with Mynetrades was working again at the Newstan Colliery for two months. The mine was on care and maintenance. No production was being carried out and he did general deputy's work, that is the work of statutory inspections, for example recording levels of gas in the air in various parts of the mine. After that the plaintiff worked for Mynetrades at the Chain Valley Colliery. He initially thought he was on the weekend roster but then he was not quite sure. However it is clear that he worked at Chain Valley Colliery as a deputy.

  3. In October of 2009 the plaintiff commenced to be employed by his own company Sugarloaf Mining Proprietary Limited. One harkens back to the fact that the first pit in which the plaintiff served in the mining industry was the Mount Sugarloaf Colliery and no doubt he named his own company after his first pit. His own company provided work to him at the Blakefield Colliery as a deputy for about one week and then from December 2009 until October 2010 worked at the Chain Valley Colliery, again as a deputy.

2010s

  1. When the work at the Chain Valley mine ran out, the plaintiff found work at the North Goonyela mine in Queensland. His job there was as a project manager. In January of 2011 the plaintiff's work with his own company took him to the South Island of New Zealand. He worked at the Spring Creek Colliery near Greymouth for five months. According to the history obtained by Dr David Millons the plaintiff worked there as the under manager.

  2. It is clear that the plaintiff would have continued to work at that mine but for a serious injury which befell him on 29 May 2011. The injury was not when the plaintiff was involved in underground coal mining in New Zealand but when he was hunting in New Zealand. He was hunting deer in a mountainous area near Greymouth and at the relevant time, he was carrying a 15 kilogram chamois which he had shot over one shoulder and also carrying a rifle. He was on the slope of a hill or gully. He slipped on some rocks or the rocks gave way and he fell down into a creek bed. The plaintiff made it very clear in his oral evidence that this was the worst accident that he had ever experienced and he thought that his days might come to an end in that creek valley in New Zealand. One of the men with whom he was hunting sought help and eventually the plaintiff was taken by helicopter to the Greymouth Hospital. He elected to follow advice usually practiced by lawyers on circuit: when in pain catch the plane.

  3. He flew back to his home at West Wallsend, went to the West Wallsend Medical Centre on Friday 3 June 2011 and was referred to Dr Peter Berton, a specialist orthopaedic surgeon in Newcastle. Dr Berton specializes in knee surgery. Unfortunately Dr Berton's reports have not been put before me even though they appear to have been available to learned counsel for the plaintiff who prepared a chronology. It tells me, for example, of the plaintiff undergoing a Doppler ultrasound on 7 June 2011 and an MRI scan of the right knee on 7 June 2011. Counsel included in the chronology a brief description of a surgical procedure that the plaintiff underwent. It was the removal of a pre‑patellar enlarged bursa and quadriceps tendon repair.

  4. After that procedure there are numerous ultrasounds of the plaintiff's right lower limb. It appears that the plaintiff was off work for roughly six months after his accident in New Zealand. The surgery was clearly a major event in the plaintiff's life and, from what the plaintiff himself told me, was clearly a cause of a major ongoing problem in his left knee. The plaintiff referred in his evidence to cords being placed to attach his muscle to his knee and of his being able to feel the cords when he moves his knee and that but for the cords, his muscle might rupture again away from the knee. This causes the plaintiff ongoing symptoms which are probably the worst symptoms that he has.

  5. In November of 2011 the plaintiff returned to working for his own company. He found work at his well‑known workplace the Newstan Colliery. He worked there as a deputy and he told me that he had a good team of young men working for him. They essentially were checking sealed areas of the mine, that is old workings which had been sealed up to make sure that there was no gas leaking from those areas into what still might be thought to be a working mine. However that job finished in February 2013. The plaintiff told me that all contractors were dismissed by the owner of the colliery at that time and that he did not have any work for about one year from February 2013.

  6. The plaintiff had been obtaining work since he was laid off on 22 May 2009 because he was well‑known in the mining industry and he was often asked by other persons who worked as deputies or under managers or managers to come to work for them at another mine. The plaintiff was again asked to go back to the Newstan Colliery. For that purpose he underwent a pre‑placement medical examination with Coal Services Health. The documentation generated for that is voluminous. It is exhibit AA. He was found to be medically fit for the proposed duties as a deputy in an underground coal mine. The examination included a functional assessment. The plaintiff was able to undertake all of the tasks that were asked of him. For example, his grip strength in the right hand was 98% of that for a male of his age. His grip strength in the left hand was 101% of that of a male of his age. No problems were identified in the plaintiff's ability to lift and carry, to climb a ladder, to climb stairs, to walk on uneven ground, to walk on sloping ground, to lift 30 kilograms from his waist to the floor, to lift 15 kilograms from his waist overhead and to carry weights of 20 kilograms. He was able to do shoveling, drag cable, hang cable, carry bags of stone dust, which weigh 20 kilograms, and to move them about and to lift and hold ventilation tubes for 30 seconds at a time above shoulder height.

  7. As submitted by learned counsel for the defendant, Mr Odling, the plaintiff's ability to do the tasks asked of him was very good. Indeed, the person who administered the test, Mr Scott Coulson, an accredited exercise physiologist, rated the plaintiff's performance as "excellent". However, the plaintiff told me, and there is truth in what he says as a general proposition, that one can always pass a medical, especially if one knows what one has to do. The plaintiff in his years in the coal mining industry, and I repeat that there were 45 of them, would have had regular health examinations by the Joint Coal Board or, later, Coal Services Health, more frequently in the later years than in the earlier years.

  8. The plaintiff passed the test and started working again for the sixth defendant at the Newstan mine on 17 February 2014. He was placed in charge of a gang of miners who were changing rails in both the drifts at the mine. He was working on a slope of 1:3.5 which, if my mathematics be correct, is a slope of about 25°. The plaintiff told me that he would have assisted for as long as he could but had to give it away. He referred to his "body being punished" and in particular, his legs being a problem for him. He also said that he had ongoing problems in his back, his shoulders and his neck, the neck problems occurring when he moved his head. Since stopping work at the Newstan mine on 6 April 2014 the plaintiff has not done any paid work but he has done some work for charitable purposes since that time.

Weekly payments

  1. The first question is the plaintiff's claim for weekly payments of compensation. This is perhaps an academic enquiry. Between 7 April 2014 and 30 June 2014 the plaintiff's average weekly earnings but for injury were $3,102. I shall eschew cents. From 1 July 2014 to 30 June 2015 his average weekly earnings but for injury were $3,291. From 1 July 2015 until 1 March 2016 his average weekly earnings but for injury were $3,437.

  2. Did the plaintiff have an ability to work after the 6 April 2014? I again point out the plaintiff had worked in the coal mining industry and only in the coal mining industry since the age of 17. Coal mining was his career, his working life. It has been submitted the plaintiff theoretically could have done work in some other industry if an employer was prepared to employ a man who was 64 years and a number of months old. In rough terms it would be like asking a person who had worked as a lawyer for 40 or 45 years to start working as a clerk doing sedentary work in an office when that lawyer had been used to going to court and participating in trials or hearings. Given his age and the number of injuries which he had sustained, his ongoing problems, I accept the plaintiff should be taken to be totally incapacitated.

  3. I freely acknowledge that perhaps the plaintiff's major source of incapacity was the parlous condition of his right knee. Indeed on 12 August 2015 the plaintiff went to the West Wallsend Medical Centre which he had been attending since 16 August 1994 and told Dr Robert Baker that he had finished his work in April 2014. The doctor's notes continue thus, "Could no longer work as a result of his knee injury". The clinical note goes on to record that a form concerning work was completed; that form is exhibit 2. The primary diagnosis provided by Dr Baker was of chondromalacia of the right knee and a problem with a cruciate ligament but he does not indicate which of the two cruciate ligaments was involved. It may be that they were both involved. Dr Baker said that the plaintiff first consulted him about this condition on 3 June 2011 which was very shortly after his return from New Zealand. When asked to provide a history he recorded that the patient's knee injury occurred when he was hiking in New Zealand and developed a chronic knee problem and that the plaintiff was "pending replacement", which means that as far as Dr Baker was concerned, the plaintiff might need to come to total knee replacement. The doctor describes the plaintiff as having chronic pain and swelling of the knee which gave way. He thought that those symptoms were severe to moderate.

  4. When asked to say whether there was any emotional behavioural disorder, Dr Baker said this, "Coming to terms with not being able to function at the work situation for the last year". Dr Berton noted the plaintiff was unable to stand for any prolonged period, was limited to the distance over which he could walk, that he needed to wear a brace, had a limited ability to bend and that he had to avoid both squatting and climbing. However the latter limitations could well be due to another problem, namely a back injury. Dr Baker was asked to make an additional comment. He said this:

"John has been active in his former life until the accident in New Zealand after which his social life of outdoor activities has been curtailed (June 2011). In addition to this he has prematurely left work as a result in April 2014".

  1. However, leaving aside the effects of the right knee injury in New Zealand, I am persuaded by the other evidence before me that the plaintiff has so many other disabilities that essentially he is unable any longer to sell what residual earning capacity he has on the open labour market. The plaintiff therefore is entitled to an award for total incapacity from 7 April 2014 to 1 March 2016. The plaintiff's wife has been at all material times dependent upon him for support. As is typical at this stage of the case when I have nearly finished judgment the parties have been as yet unable to tell me what the current weekly wage rate is which must form the basis of the award for the first six months of incapacity.

  2. O'ROURKE: We have reached agreement.

HIS HONOUR: Thank you, what is it?

O'ROURKE: $1,162 and it should run to 5 October, that being 26 weeks.

HIS HONOUR: You can write out the rest of the award. We're not going to announce it today. You can write it out what the award for weekly payments is and work out the dates of indexation, et cetera. You did that last week, you can do it this week. I did it last week; you can do it this week.

Consideration of lump sum claims

  1. The plaintiff claims, as I said, lump sum compensation under s 66 and s 67. For that purpose the plaintiff has been sent by his solicitors to a trinity of doctors at Newcastle. I should refer to the trinity at Newcastle as the generous trinity. The trinity comprises Professor Y A E Ghabrial, Dr Alan Hopcroft and Dr A V B Isaacs. If I may refer to Professor Ghabrial by the title of Doctor, he is an orthopaedic and spinal surgeon. Dr Hopcroft is a general surgeon specialising in orthopaedics. Dr Isaacs is also an orthopaedic surgeon. For the defendant, the plaintiff has seen Dr Roger Rowe who is a very conservative gentleman. The plaintiff has also seen Dr David Millons. Dr Rowe is an orthopaedic surgeon; Dr Millons is, like Dr Hopcroft, a general surgeon specializing in orthopaedics. If I may be permitted to say so, Dr Millons is often a via media between the Scylla and Charybdis of the trinity of Newcastle and Dr Rowe.

  2. Before going on to look at various assessments there are a few other things I should mention. The plaintiff was referred by his general practitioner Dr Baker to Dr Ghabrial on 1 July 2014. Dr Baker's notes tell me that the plaintiff attended because he needed updated medications. However he printed at the same time a standard letter of referral to Dr Ghabrial and also requested a X‑ray of the low back. The doctor also provided the plaintiff with the prescriptions which he sought. The plaintiff told me that he was told by his solicitor to seek the referral to Dr Ghabrial. The plain X‑ray which Dr Baker ordered was performed by Dr Minh Truong on 14 July 2015.

  3. Dr Truong reported on the following day. The radiologist reported the findings thus:

"There is a slight lumbar spine curvature convexity towards the right. The lateral spine alignment is normal. There was moderately severe L5‑S1 degenerative disc disease, with a narrowed disc space, end plate sclerosis and end plate osteophytes. There is mild degenerative disc disease elsewhere in the lumbar spine, with preserved disc spaces. There is no compression fracture. There is mild L5‑S1 posterior facet joint arthrosis and mild degenerative change of the sacroiliac joints."

The first thing that must be observed is that in the radiological investigations of 12 September 1990 and 20 May 1991 the scoliosis was convex to the right in 1990 and was convex to the left in 1991. That indicates probably at some stage the plaintiff's muscle spasm was severe enough to reverse the scoliosis, not to make the spine normal but to change the scoliosis from one side to the other. Furthermore it is clear that the radiological picture shows a worse condition than the CT scan performed at the request of Dr Kelly on 7 April 1995.

  1. Dr Ghabrial first saw the plaintiff on 22 July 2014 and he ordered a number of investigations. They were both plain X‑ray and ultrasound of each shoulder joint and a CT scan of the cervical spine and also a CT scan of the lumbar spine. X‑ray of the right shoulder showed degenerative changes present in the glenohumeral joint. There were also prominent degenerative changes in the acromioclavicular joint and there was subacromial spurring. The ultrasound of the right shoulder was said to show evidence of calcific supraspinatus tendinopathy with evidence of a full thickness tear in the mid portion of the supraspinatus tendon. There was also evidence of impingement and subacromial bursitis. The left shoulder, I need point out from the beginning, was the subject of the surgery performed by Dr Posel. Plain X‑ray of the left shoulder was said to show mild degenerative changes in the glenohumeral joint. There were degenerative changes noted in the acromioclavicular joint and there were small foci of calcification/ossification in the region of the rotator cuff.

  2. Ultrasound of the left shoulder showed a complete tear of the supraspinatus which had previously been repaired. There was no evidence of subacromial bursitis. There was no repair of the supraspinatus previously but it had been the subject of Dr Posel's investigation. The important thing to note is that there was now a complete tear of the supraspinatus tendon.

  3. CT scan of the cervical spine was said to show evidence of cervical spondylosis with multilevel foraminal stenosis and also some mild canal stenosis in the lower cervical spine. CT scan of the lumbar spine showed problems at L3‑4, L4‑5 and L5‑S1. There was a broad base bulging disc at L3‑4, a broad base bulging disc at L4‑5 and at the L5‑S1 level an osteophyte complex causing mild canal stenosis. The radiologist thought that there was some impingement of the L3 nerve root and likely impingement of the left L5 nerve root.

  4. Before I go on I should point out that of the radiological investigations before me, there is none of either knee made available to me and there is none of either hip made available to me.

  5. On 7 October 2016 the plaintiff underwent an MRI scan of his cervical spine at the request of Dr Ghabrial. That is said to show cervical spondylosis most marked at C5‑6. There was a mild degenerative spondylolisthesis at C3‑4 and C4‑5. The MRI scan as reported showing those levels compromise of the left neuroforamen at C4‑5 and to the right side to a lesser extent at C3‑4 and C4‑5. There is also said to be facet joint arthropathy at C2‑3 causing some moderate compromise of the right neuroforamen.

  6. One must be careful when seeking to compare reports of radiological findings as different doctors can express their views in different ways. A radiological impression of an impingement on a nerve root will be of little moment if there is no actual evidence of nerve root compression, that is some abnormal neurological change. Equally a compromise of a neuroforamen does not mean that the nerve itself is being impinged as it passes through the foramen.

  7. Dr Ghabrial also arranged for nerve conduction studies to be performed on 20 October 2016 which are said to show "borderline" slowing of the median nerve distribution consistent with "mild" bilateral carpal tunnel syndrome. That report is so qualified that it may mean that it is of little moment.

ADJOURNED TO WEDNESDAY 15 NOVEMBER 2017

Back impairment

  1. Yesterday I made sufficient findings to enable me to deal with the plaintiff's claims under s 66. The first item I shall deal with is the permanent impairment of the plaintiff's back. The assessments range between 30%, an assessment made by Dr Ghabrial and Dr Isaacs, and 15%, an assessment made by Dr Roger Rowe. Each of Dr Rowe and Dr Millons say that half of the permanent impairment should be assigned to an underlying congenital or age-related degenerative disease. Bearing in mind the pathology which I sought to identify yesterday when discussing in particular the radiological appearances, I find that the permanent impairment of the plaintiff's back is 25%. It is almost impossible to know the extent of any congenital or age-related component of that amount of impairment. Therefore, I shall apply the statutory 10%, so that the plaintiff is entitled to a finding of 22.5% permanent impairment of his back. However, he has already been awarded a 12% impairment of his back, so that he is entitled to an award of 10.5% for the impairment of his back.

Impairment of the neck

  1. The range of assessments for the impairment of the neck is between 35%, an assessment made by each member of the generous trinity, and 10%, an assessment made by Dr Rowe and also by Dr Millons. Dr Millons and Dr Rowe both suggest that half of that impairment is due to some underlying congenital condition or age-related degeneration. I have reached the view, bearing in mind the radiological appearances, but also bearing in mind the plaintiff's symptoms, which are less than one would expect given the radiological appearances, that the extent of the permanent impairment of the plaintiff's neck is 25%. I also apply to that the 10% statutory deduction for any underlying congenital or age-related condition. The plaintiff is accordingly entitled to an award for 22.5% impairment of his neck.

Loss of use of right arm

  1. I turn then to the condition of the plaintiff's right arm. There is a claim for permanent impairment of the right arm at or above the elbow, and also impairment of the hand. Unless they result from different injuries, the plaintiff is not entitled to two lump sums as claimed. That follows from my decision in Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571, in which I held that the hand formed part of the arm below the elbow, and the arm below the elbow includes the arm at or above the elbow. In that regard, my reasoning process was confirmed by the decision of the High Court of Australia in KB Hutcherson Pty Limited v Correia (1995) 183 CLR 50; 11 NSWCCR 213.

  2. It appears clear to me that the doctors looked at two relevant items, the condition of the plaintiff's right shoulder and the condition of the plaintiff's right hand. As far as the shoulder injuries are concerned, the range of assessments is between 25% and 10%. Dr Isaacs makes the 25% assessment and Dr Rowe the 10% assessment. Dr Rowe says that half of the impairment is due to some congenital or age-related condition. Dr Millons thinks that only one-third is related to some underlying condition.

  3. As far as the assessments of the right hand are concerned, the assessments range between a 15% loss, provided by the generous trinity of Newcastle, and a 5% loss certified by Dr Rowe. Dr Rowe says that the condition of the plaintiff's hand is wholly non-compensable, and Dr Millons says that only half of the condition is compensable.

  4. The plaintiff has each of his hands affected by osteoarthritis which can be diagnosed visually by seeing evidence of Heberden's nodes around the interphalangeal joints. That is clearly a constitutional condition, as Dr Millons and Dr Rowe say. A classical example of that is one of my colleagues who sits regularly in the Coal Miner's Workers Compensation list and, although having previously worked as both a solicitor and barrister, has never worked as a coalminer. Her Honour has widespread osteoarthritis of each of her hands and Heberden's nodes are clearly visualised if one looks at her Honour's hands.

  5. The plaintiff also has Dupuytren's contracture in each hand. This is also congenital, in fact, it is genetically inherited. Every person in the world who has Dupuytren's contracture can trace their ancestry back to one Viking who lived before the year 1000. This is in accordance with the assessments made by Dr Rowe and Dr Millons. However, Dr Millons accepts that the half of the plaintiff's hand condition can be assigned to aggravation, acceleration, exacerbation or the like of the underlying congenital conditions. I accept Dr Millons' opinion.

  6. The range of assessments, as I said, is between 15% and 5%. I accept that the plaintiff has a 10% loss of efficient use of his right hand. Half of that sum is 5%. 5% of a hand is equivalent to 4% of the total of the arm, that is by applying the mathematical formula which one can find in the Act when one realises that the right arm at or above the elbow is 80% of the maximum. The right arm below the elbow is 75% of the maximum, and the right hand is 70% of the maximum. I include in the assessment of the loss of efficient use of the plaintiff's right arm that 4% for loss of efficient use of his hand.

  7. My ultimate finding is the plaintiff has a 19% permanent loss of efficient use of his right arm at or above the elbow, 15% of which is due to the shoulder condition and 4% of which is due to the condition of his hand.

Loss of use of the left arm   

  1. The plaintiff also claims a lump sum in respect of the loss of efficient use of this left arm at or above the elbow, and in respect of his left hand. The left hand considerations are exactly the same as the consideration of the right hand, and that entitles the plaintiff to a 4% loss of efficient use of his left arm at or above the elbow, resulting from the loss of efficient use of his hand.

  2. The range of assessments for the left arm at or above the elbow in respect of the shoulder condition is between 25% provided by Dr Ghabrial and Dr Isaacs, and 15% provided by Dr Hopcroft and Dr Rowe. I find that the plaintiff has, as a result of the shoulder condition, a 20% loss of efficient use of his left arm at or above the elbow. That entitles him to an award for 24% of loss of efficient use of his left arm at or above the elbow. The plaintiff made it very clear in his evidence that the left arm was more gravely affected by his shoulder condition than his right arm, and the findings I have made seek to reflect that difference.

  3. Before leaving the condition of the applicant's hands, I should point out that in their more recent reports both Dr Ghabrial and Dr Isaacs increased the extent of the permanent impairment of the hand because of a recent finding of carpal tunnel syndrome, which, as I pointed out yesterday, was somewhat dubious. If the plaintiff has developed carpal tunnel syndrome, it only came on after he left work and therefore could not possibly be related to his employment. However, I think it more likely that the EMG studies of his median nerve were equivocal.

Loss of use of right leg

  1. I turn then to consider the loss of efficient use of the plaintiff's right leg at or above the knee. This is a difficult exercise. The assessments range between 30%, an assessment made by Dr Ghabrial, and also assessment made by Dr Isaacs, but he excluded from that 30% loss anything that happened to the plaintiff in the hunting accident in New Zealand. The lowest end of the range is a 15% loss found by Dr Rowe. Dr Millons, who diagnosed a 20% loss of efficient use of the plaintiff's right leg at or above the knee, thought it was wholly referable to the injury in New Zealand. Doctor Rowe, however, thought that only one-third of the loss was due to the injury in New Zealand. However, Dr Rowe thought the remaining two-thirds of the loss was due to some underlying constitutional degenerative condition, or a degenerative condition due purely to age.

  2. The matter is complicated by the fact that the plaintiff's doctors have been asked to assess an additional loss of efficient use of each leg at or above the elbow, because of conditions of the plaintiff's hips. That led Dr Hopcroft to say that there was a 10% loss of efficient use of each leg because of a hip condition, and Dr Isaacs said that there was a 25% loss of efficient use of each leg because of a hip condition. In other words, Dr Isaacs says that the plaintiff has a 55% loss of efficient use of his right leg at or above the knee, excluding any problem that he had in New Zealand. Such an opinion is bizarre and leads me to reject Dr Isaacs' assessment outright. It is not feasible.

  3. In essence, what the doctors say is that the plaintiff must have some degenerative condition of his hips, but not even a plain X-ray has been taken of either of the plaintiff's hips. The plaintiff himself made no complaint to me about either of his hips. The doctors' opinions concerning a loss of efficient use of each leg, at or above the knee because of a hip condition, is pure speculation and I reject those opinions.

  4. The only remaining condition that might be compensable is some osteoarthritis of the knee. That again is speculation, because there are no plain X-rays or any other radiological investigation of either of the plaintiff's knees. However, Dr Rowe qualified by the defendant, accepts that there must be some osteoarthritis of the plaintiff's knees, and I therefore accept that there is some osteoarthritis of the plaintiff's knee on the right side and also, as I shall point out, on the left.

  5. Doing the best I can, I find the plaintiff has a 10% loss of efficient use of his right leg at or above the knee, due to compensable conditions. Again, I deduct the statutory 10% because it is impossible to determine the extent to which the osteoarthritis is due to either a congenital problem or merely age‑related degeneration. The plaintiff is entitled to therefore an award for 9% loss of efficient use of his right leg at or above the knee.

Loss of use of the left leg

  1. I turn then to the condition of the plaintiff's left leg at or above the knee. The range here is between 20% diagnosed by Dr Ghabrial and Dr Isaacs and nil, the assessment made by Dr Millons. My reasoning in respect of the left knee is, in essence, the same as my reasoning concerning the right leg. The plaintiff is accordingly entitled to an award for 9% loss of efficient use of his left leg at or above the knee.

Legs below the knee

  1. I have sought to uncomplicate the loss of use of each of the plaintiff's legs at or above the knee by ignoring in what I have done thus far, the loss of efficient use of the plaintiff's legs below the knee as claimed but based on injuries to each of the plaintiff's ankles. In that regard, I am greatly assisted by Dr Millons and also by a submission put to me by Mr O'Rourke.

  2. Dr Millons diagnosed a 5% loss of efficient use of the plaintiff's right leg below the knee, due to an injury on 22 November 1996 when the plaintiff was employed by the second defendant. I accept that assessment. That entitles the plaintiff to a lump sum of $4,630.50 in respect of a 5% loss of efficient use of this left leg below the knee, resulting from the injury of 22 November 1996.

  3. Dr Millons also diagnosed a 10% loss of efficient use of the left leg below the knee, due to an injury that occurred to him on 10 April 1981. If Dr Millons' opinion were correct, the plaintiff would be entitled to a lump sum of $1,445 for 10% loss of the lower part of the leg, pursuant to s 16 of the Workers Compensation Act 1987.

  4. However, Mr O'Rourke pointed out that the plaintiff underwent a second major injury to his left ankle on 19 August 1998, as I pointed out yesterday, in particular relying upon exhibit O, the radiological investigation of Dr Stuart Slater of 10 August 1998, supported as that is by a short letter from Dr John McQualter of 28 January 1998 which is part of exhibit D. I have no hesitation in finding that the plaintiff has a 10% loss of efficient use of the lower part of his left leg, resulting from the combined effect of an injury on 10 April 1981 and the injury of 19 August 1998. That entitles the plaintiff to a lump sum of $9,261 in respect of a 10% loss of efficient use of the plaintiff's left leg below the knee.

  5. If it has not adequately expressed thus far, I point out that the findings I have made in respect of the permanent impairment of the plaintiff's back, the permanent impairment of his neck, the loss of efficient use of each of his arms because of his shoulder conditions and hand conditions, and the loss of efficient use of each leg at or above the knee because of osteoarthritis of each of the knees, is due to a disease process or the aggravation, acceleration, exacerbation or deterioration of a disease process in those parts of the plaintiff's anatomy. If one needs any statement in evidence to support that it is contained in Dr Isaacs' report of 5 November 2015 at p 6 in which he says:

"The nature of the duties he undertook in the Coal Mining Industry contributed to the aggravation and acceleration of any age-related degeneration in the various parts of the body."

Pain and suffering

  1. My findings under s 66 entitle the plaintiff to a lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from the impairment of his back, the impairment of his neck, and the loss of efficient use of each of his arms at or above the elbow, and the loss the efficient use of each of his legs at or above the knee. The submissions of counsel really reflect the dichotomy between the opinions expressed by the generous trinity of Newcastle and Dr Rowe. However, it is clear that the plaintiff has suffered from major problems in his neck and back, as far as the neck is concerned from late 1987, as far as his back is concerned from 1989, and in each of his shoulders and also in his knees, although, I accept that the major problem that the plaintiff has in his right leg was the injury that befell him whilst hunting in New Zealand.

  1. As I appointed out yesterday, the plaintiff joined the mining industry at the age of 17 and left it at the age of 64, mining was his working life. He clearly was well-motivated. If any comment should be made of the plaintiff, it is contained in the assessments made by Dr Millons. On p 10 of his primary report of 16 July 2015, Dr Millons said this:

"Mr O'Donnell appears to be unhappy that he has been put out to pasture when he wanted to keep working. He feels that he should probably have taken more time from work with the various problems that he had over the years, but he was always a man who gave more than one hundred percent to the task in hand and, as noted above, would often work back to back and extra shifts to fill in for others who had not turned up for work."

That statement is contained at the end of Dr Millons' history. At the commencement of his opinion on p 14, Dr Millons said this:

"Mr O'Donnell claims to have problems with various parts of his anatomy. He appears to have been a man of good motivation who has worked hard during his years in the industry and filled in for others periodically when needs demanded."

  1. The plaintiff was a very interesting witness. He repeatedly told me that he was not a whinger but then proceeded to complain about the treatment that he was given by his employer. He appeared to me to be a somewhat bitter man, an assessment which was confirmed by the plaintiff's counsel. Equally, Dr Isaacs referred to the plaintiff at one stage as a "angry man". However, it appeared to me that the plaintiff's bitterness, if I may use that term, was due not to resentment, but to the fact that he had worked so hard during his working life, that his ability to enjoy his "retirement" has been curtailed by the interference with his ability to perform outdoor activities which he clearly enjoyed, especially, for example, hunting.

  2. The plaintiff's evidence was full of many aphorisms, the best of which I believe was this:

"It was all about duty of care. I did my duty and they did not care."

"They" is a reference to his employer. Again, it appeared to me to be a reflection, with the benefit of hindsight, that perhaps he worked too hard, returning to work too early after having treatment for his various injuries.

  1. However, none of that is inconsistent with the plaintiff’s having had real pain and discomfort since late 1987 and continuing to have it now. His life expectancy ought be normal. The plaintiff, according to medical records I have read, has not smoked since probably the age of 21 and his alcohol intake is reduced, it is one schooner of beer a week. There is no suggestion that he has any cardiovascular problem.

  2. Indeed, for a number of years the plaintiff was active in Rotary, performing voluntary work whilst on leave from the mine in villages along the Kokoda Track in Papua New Guinea, giving assistance to the citizens of that country who were in dire need of medical and dental treatment. The plaintiff was working with a medical or dental team on his various trips there.

  3. Doing the best I can, it appears to me that the plaintiff is entitled to a lump sum under s 67 of $30,000. 45% of a most extreme case is $29,790, 50% of a most extreme case is $33,100. In my assessment the plaintiff's experience of pain and suffering is a little under half of a most extreme case. However, from that $30,000 must be deducted the $10,513.15 previously paid to him under s 67 such that the plaintiff is entitled to an award for $19,486.85.

Award

  1. For those reasons, I make an award for the application for $1,162 per week from 7 April 2014 to 5 October 2014, for $475.30 per week from 6 October 2014 to 31 March 2015, for $481.50 per week from 1 April 2015 to 30 September 2015 and for $485.40 per week from 1 October 2015 to 1 March 2016, pursuant to s 9 of the Workers Compensation Act 1926.

  2. I make the following awards under s 66: for $8,334.90 in respect of a further 10.5% impairment of his back, for $11,907 for 22.5% impairment of the neck, for $20,109.60 for 19% loss of efficient use of the right arm at or above the elbow, for $23,814 for 24% loss of efficient use of the left arm at or above the elbow, for $8,930.25 for 9% loss of efficient use of the right leg at or above the knee, for $8,930.25 for 9% loss of efficient use of the left leg at or above the knee. I make an award for the plaintiff under s 67 for $19,486.85. All those awards are against the sixth defendant.

  3. I make an award for the plaintiff for $4,630.50 for 5% loss of efficient use of his right leg below the knee. I make an award for the plaintiff for $9,261 for 10% loss of efficient use of his left leg below the knee. Those awards are against the second defendant.

  4. I make awards for the first, third, fourth and fifth defendants.

  5. I make a general order for the plaintiff against the sixth defendant under s 60.

  6. I order the second and sixth defendants to pay the plaintiff's costs of his claims against them.

  7. Any other orders sought?

WHITELAW: Would I be able to have an order that the plaintiff be able to approach the Court on a question of disbursements, if that becomes an issue?

HIS HONOUR: Is that in case the fees payable to the generous trinity exceed what the defendant is prepared to pay?

WHITELAW: That may happen. I think it has happened in the past.

HIS HONOUR: I'm not prepared to grant the leave.

WHITELAW: As the Court pleases.

HIS HONOUR: Someone has to put their foot down firmly. Any other orders sought?

WHITELAW: No thank you your Honour.

HIS HONOUR: I think that covers it doesn’t it?

WHITELAW: Yes, thank you.

**********

Decision last updated: 29 March 2019

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Casserly v Alcoa of Australia Ltd [2006] WASCA 150
Casserly v Alcoa of Australia Ltd [2006] WASCA 150