Nunn v Camberwell Coal Pty Limited [2019] NSWDC 938

District Court New South Wales

Medium Neutral Citation: Nunn v Camberwell Coal Pty Limited [2019] NSWDC 938 Hearing dates: 13-15 November 2019 Date of orders: 15 November 2019 Decision date: 15 November 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: See [40] Catchwords: COALMINERS WORKERS COMPENSATION Claim for weekly payments for partial incapacity – P had left coal mining industry and, during relevant period, was in self-employment – Consideration of various ways of fixing compensation under s11(1) of the Workers Compensation Act 1926 Legislation Cited: Workers Compensation Act 1926 Workers Compensation Act 1987 Cases Cited: Cage Developments Pty Ltd v Schubert [1983] HCA 27; (1983) 151 CLR 584; [1983] WCR 167 Texts Cited: Willis, Workmen's Compensation Acts, 37th ed (1945) Category: Principal judgment Parties: Rodney Nunn – Plaintiff Camberwell Coal Pty Limited - Defendant Representation: Counsel: D. Benson – Plaintiff T. Rowles – Defendant

Solicitors: Hicksons Lawyers – Plaintiff Sparke Helmore - Defendant File Number(s): RJ41/17 Publication restriction: Nil.

Judgment 1. HIS HONOUR: The plaintiff, Rodney Ian Nunn, was formerly employed in or about an open cut coal mine as a plant mechanic. He now claims weekly payments of compensation from 1 July 2014 to date and continuing pursuant to s 11(1) of the Workers Compensation Act 1926 as its operation is preserved for those who work in or about a coal mine pursuant to Sch 6 Pt 18 of the Workers Compensation Act 1987. The statement of claim also claims lump sum compensation under s 66 and s 67, but the parties were able to reach an agreement on that aspect of the plaintiff's case. The defendant consented to awards being entered for the plaintiff for 30% impairment of his back and a 20% loss of efficient use in his left leg at or above the knee, as well as the plaintiff's entitlement under s 67 for pain and suffering, anxiety and distress resulting from that impairment and that loss. The parties also reached agreement as to outstanding s 60 expenses. 2. The case is relatively straightforward. The plaintiff was born in 1972. He is currently 47 years old. He has dependent upon him four children. His eldest son, Campbell, was born on 23 September 1994. Campbell currently lives with the plaintiff. He is a fulltime student at the University of Newcastle and obtains from his father board and lodging. That amounts to a dependency because the son is mainly dependent upon the plaintiff. The plaintiff's second son, Riley, was born on 16 April 2002. Riley is 17 years old. He is current in year 11 at high school. Although Riley resides with his mother, the plaintiff's first wife, the plaintiff pays child support for him. I note the plaintiff's general practitioner's records this entry made on 28 September 2015: "Child Protection Services is restricting him from seeing them [his two oldest sons] as he owes $6,000 for child support. This was calculated on previous annual income when working in the mines. Now Rodney [in] self-employment and making much less money and cannot afford this." It would appear at that stage Campbell was living with his mother as well Riley. It appears that the amount of child support which is paid by the plaintiff is considerable. I accept that Riley is mainly dependent upon the plaintiff for support. 1. The plaintiff has two children, the fruit of his second marriage. They are Phoebe who was born on 18 April 2011 and is currently eight years old, and his youngest son, Archie, who was born on 31 May 2012 and is seven years old. Both Phoebe and Archie are in primary school. There is no dispute that they are mainly dependent upon the plaintiff for support. I accept, therefore, that the plaintiff has dependent upon him at all material times, four children. 2. The plaintiff grew up in Moree. He left high school at the age of 18, having gained a Higher School Certificate. He then obtained an apprenticeship with Gough & Gilmore as a plant mechanic working at the Mount Thorley Mine. He did his TAFE studies at Kurri Kurri. He completed his apprenticeship and became a tradesman. Shortly after completing his apprenticeship, the plaintiff obtained work with the defendant on 7 August 1995. That date can be obtained from exhibit 7. 3. There was no dispute that the plaintiff sustained an injury to, inter alia, his low back on 2 January 2001. The claim form he submitted at the time is exhibit B. That bears date 3 January 2001. The plaintiff was re running wires from the front spotlights on the right hand air cleaner box of a Caterpillar truck and fell down backwards on to the boarding ladder, injuring his lower back, his thoracic spine and his head. He was taken to first aid and then sent home. He eventually went to the Singleton Hospital where X rays were performed. According to Dr A V B Isaacs, who first saw the plaintiff on 31 January 2001, the X rays of thoraco lumbar spine show that the L4 5 disc space was moderately narrowed and that there was a transitional L5 vertebra on the right. Apparently it may show some abnormality in the thoracic spine as well. 4. The plaintiff came under the care of Dr P Innis at the Singleton Heights Medical Practice. On 18 January 2001 a bone scan was performed. According to Dr Isaacs, that showed a fracture of the T6 vertebral body and a fracture through the lower sacrum and a bony injury involving the posterior element of the sacrum on the right side. The plaintiff did not lose any time from work. That was a practice adopted by the defendant to obviate time loss injuries. The plaintiff was provided with menial work in the office as a form of restricted work. 5. The plaintiff, as I said, saw Dr Isaacs on or about 31 January 2001. Dr Isaacs obtained a history that the plaintiff had seen a chiropractor, but the plaintiff did not respond to chiropractic treatment. Indeed, the plaintiff told me that the one manipulation of his back by the chiropractor caused him acute distress because it appears that it was not realised at that time that there had been bony fractures involving the spine. According to Dr Isaacs, movements of thoracic spine were restricted at extremes. He said that there was tenderness over T6 to T7 although the doctor refers to "L6 7" which, of course, does not exist and clearly in context is a mistyping of T6 7. As far as the lumbosacral spine is concerned, Dr Isaacs noted a positive sciatic stretch test. He also noted tenderness over the L5 S1 interspinous space. 6. He arranged for an MRI That was performed on 1 February 2001. According to the radiologist, Dr Wierna, that showed a left para median protrusion at the L4 5 level, abutting the origin of the L5 nerve root. There was an annular tear of the L4 5 disc associated with that protrusion. According to Dr Wierna, there was a minor bulge at the L5 S1 level associated with a degree of disc degeneration. 7. The plaintiff returned to see Dr Isaacs on 9 February 2001. He noted the plaintiff was still performing light duty work at that time. The doctor thought the plaintiff was improving symptomatically and, therefore, recommended conservative treatment. 8. The plaintiff remained working in his occupation as a plant mechanic in the defendant's open cut mine near Singleton for a number of years. He eventually found the work too heavy for him and he resigned, in effect, on 25 June 2010. That date can be obtained from exhibit 7. 9. There is really no dispute the plaintiff injured the L4 5 disc in his back in the fall of 2 January 2001. Repeated radiological investigations establish that. Eventually, the plaintiff was referred to Dr Richard Ferch, a neurosurgeon, specialising in spinal surgery. Dr Ferch first saw the plaintiff on 20 March 2012. Dr Ferch arranged further radiological investigations which as far as the L4 5 disc is concerned, showed an annular fissure with a broad based disc bulge. That was compressing the theca and effacing the central nerve roots, more so on the right than on the left. In combination with hypertrophy of the ligamentum flavum and facet joint degenerative changes, there was mild to moderate canal stenosis. The L5 S1 disc was also degenerate, but there was no fissure of the annulus fibrosis of the disc, nor was there evidence of compression that was equal to or greater than the compression at the L4 5 level. Dr Ferch was of the view that the plaintiff's symptoms were predominantly coming from the L4 5 disc. 10. On 2 April 2012, he performed an L4 5 laminectomy and an left L5 S1 decompression. The operation report contains this: "Sequestrated disc fragments were removed beneath the L5 nerve roots bilaterally. A defect within the posterior margin of the disc was noted and loose disc material within the defect was resected. The segment was noted to be somewhat hypermobile...The left L5 S1 level was decompressed [sic] haemostasis was, again, achieved with bipolar cautery and Gelfoam." One should note that Dr Ferch did not, in that operation, remove all of the nucleus pulposus of the L4 5 disc, nor did he remove the annulus fibrosis. 1. The plaintiff's symptoms recurred. That caused Dr Ferch to perform a left L4 5 microdiscectomy with neurolysis of the L5 nerve root on 9 September 2013. Again, the doctor found a soft disc bulge and loose disc material which he ablated, decompressing the nerve root along its course. Again, he did not remove either all of the nucleus pulposus, or the annulus fibrosis of the disc. 2. Unsurprisingly, there was a further occurrence of symptoms. Eventually, on 16 February 2015, Dr Ferch carried out a full decompression at the L4 5 level and performed an interbody fusion using bone harvested from probably the iliac crest. On that occasion, he did remove the remaining nucleus pulposus and the annulus fibrosis of the disc, in other words, a full laminectomy was only performed at the third operative treatment. If the first initial treatment had been a full laminectomy, that is an excision of the whole of the disc, then the plaintiff may have only needed to have one operative intervention. 3. There is no dispute that the plaintiff is incapacitated for work. I merely have to refer to the defendant's qualified doctor, Dr David Millons. Dr Millons first saw the plaintiff on 24 May 2017. He provided this view of the diagnosis: "He had pre-existing changes at L4 5 which were asymptomatic prior to the subject fall, which fall clearly caused a substantial aggravation of those changes. The nature and conditions of his working years, thereafter, would have caused ongoing aggravation of those changes." The doctor went on to say this: "The nature and conditions of his work as a plant mechanic are heavy and demanding and entail working in awkward or confined spaces, adopting abnormal body postures and a lot of lifting." A little further in his report he said this: "The work of a plant mechanic in the mining industry is extremely heavy and demanding." 1. As to the plaintiff's then capacity to work, Dr Millons said this: "Mr Nunn is fit for work of a light, semi sedentary nature, avoiding excessive bending, lifting more than 10 kilograms or working in awkward or confined spaces. He is better suited to semi sedentary type activities. He seems well suited to his current position in vehicle diagnostics whereby he just reviews the computer programmes on cars and has others do the mechanical work...Mr Nunn will never return to pre injury duties as a plant mechanic." 1. After leaving the employ of the defendant, the plaintiff found work commencing on 4 May 2011 with DMST Pty Ltd of Bolwarra Heights. DMST was an acronym for Dwayne's Mine Safety Tech. The company was established by two former workers who had the same trade qualifications as the plaintiff and who had worked in the coal mining industry. The plaintiff's job was, essentially, an office job planning ongoing maintenance for the mining industry. The plaintiff earned good money in that job. However, the company was bought out by the SubZero Group, and the plaintiff took a certain view about the financial practices of that organisation. He believed he could no longer morally work for that group and he submitted his resignation which took effect on 21 February 2014. That date can be obtained from exhibit 6. 2. It should be noted that the plaintiff underwent his first two operations whilst working for DMST. After the first operation, he had a number of weeks off work, but it appears that it may have been only two weeks off work after the second operation. 3. The plaintiff then obtained work in Cannington in far North Queensland. That was a fly in fly out job. He was working for a company known as Secora Pty Ltd working in a job known as "business improvement coach". That, as I understand it, was not hard, physical work. In fact, it appears to be likely to be much the same as the work he was doing for DMST. A report prepared for the defendant by Furzer Crestani indicates that the plaintiff commenced working for Secora in March 2014 and, since the job lasted for six months, would have finished up in August 2014. Particulars delivered by the plaintiff's solicitors to the defendant's solicitors indicate the plaintiff was earning $1,500 per week in that employment. However, when one looks at the figures given in the Furzer Crestani report, which are taken from the records of the plaintiff's business, it appears that the plaintiff's actual gross weekly earnings were probably $2,000 per week. As I said, that job would have ended sometime in August 2017. 4. Secora Pty Ltd would not employ the plaintiff directly. It required the plaintiff to have his own company and Secora Pty Ltd subcontracted to the plaintiff's company and the plaintiff's company employed him. The plaintiff's company is known as Tregoose Pty Ltd. That company was incorporated on 6 March 2014. That is consistent with the plaintiff's starting work for Secora Pty Ltd in March 2014. 5. Tregoose Pty Ltd registered the business name of "Advanced Vehicle Remapping, Hunter Valley", on 3 September 2014. That represents the time when the plaintiff set up the business which he is still operating. To iterate what is said about that by Dr Millons, is helpful. In his report of 24 May 2017, Dr Millons said this: "Three years ago, he started up his own business, working in vehicle diagnostics. He has become quite skilled if computer programmes on cars. He works on a contract basis and is called in to service stations to deal with problems on the computerised workings of vehicle. It is all quite technical. He states that he has reinvented himself. He feels that as time passes, more people will become skilled in computerised programmes on cars and his role may not be viable long term." Later in that report, Dr Millons said this: "He seems to have found a niche position and is self-employed in vehicle diagnostics which position does not entail putting any undue demands on his lower back. One can only wish him well and hope that the position will continue. One might presume that as new mechanics come into the scene, they will be well trained in the computer diagnostic area and his position may well diminish." 1. Dr Millons saw the plaintiff for a second time on 6 September 2018. The history then obtained by Dr Millons about the plaintiff's work is this: "When I saw him last, he told me how people were becoming skilled in computer programmes and he felt that the role may not be viable long term.