Crossley v Coal & Allied Operations Pty Limited & Ors [2020] NSWDC 801

District Court New South Wales

Medium Neutral Citation: Crossley v Coal & Allied Operations Pty Limited & Ors [2020] NSWDC 801 Hearing dates: 27-28 August 2020 Date of orders: 28 August 2020 Decision date: 28 August 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Redemption approved. Catchwords: COAL MINERS' WORKERS COMPENSATION – Redemption application – Whether claims for lump sum compensation and related hospital and medical expenses were work-related. Category: Principal judgment Parties: Plaintiff – David Malcolm Crossley 1st Defendant – Coal & Allied Operations Pty Ltd 2nd Defendant – CSR Limited 3rd Defendant – Buchanan Borehole Collieries Pty Ltd 4th Defendant – Lemington Coal Mines Pty Ltd Representation: Counsel: Plaintiff – P. O'Rourke Defendants – T. Rowles File Number(s): RJ00350/18 Publication restriction: Nil.

Judgment 1. HIS HONOUR: I grant leave to the plaintiff to rely upon a second amended statement of claim filed on 1 June 2020 which I substitute for the initiating process. 2. This is an application for redemption. The sum proposed, namely $50,000, is a modest one. According to the current pleadings, the plaintiff claims weekly payments of compensation at a rate of $2,400 per week from 15 April 2012 to 12 September 2015. 12 September 2015 is the day before the plaintiff's 66th birthday. His resignation, as I understand it, took effect on 15 April 2012. The plaintiff also claims lump sum compensation for impairment of his neck and back, for the loss of efficient use of each of his legs at or above the knee, and a lump sum for the loss of efficient use of his right arm, both at or above the elbow and below the elbow. I am told that the plaintiff's s 60 expenses that are claimed amount to $30,298, in essence being the cost of bilateral knee surgery and a right carpal tunnel release that the plaintiff has undergone since the time of his resignation. Accordingly, it is necessary in considering the suitability of the sum proposed for redemption to consider the compensability of the various conditions suffered by the plaintiff. 3. The first thing to note is the records of the plaintiff's general practitioner which record this on 13 March 2012: "Retiring in four weeks. Motor home. Will be adventuring. Golf back at Cessnock." The plaintiff was telling his general practitioner that he was retiring from work, he would then have been 62 years old, and that he and his wife had bought a motor home and that they would be going adventuring throughout Australia, as well as the plaintiff's plan to continue playing golf, which on the evidence before me was a passion of his, at Cessnock. 1. On 9 January 2013 the general practitioner recorded that the plaintiff was a volunteer worker at the Cessnock Golf Club when he was in a vehicle which was driven off a bridge into a dam on the golf course. The plaintiff was thrown into the water and sustained an injury to his left shoulder. Subsequent to his shoulder injury the plaintiff also developed symptoms in his right hand. These are referred to by the late Dr John Harrison who was qualified by the plaintiff's solicitors and wrote a report on 12 March 2019. Commencing towards the foot of p 3 of the doctor's report there is a heading about non-work-related events. Dr Harrison recorded this: "On 17 December 2012 he is doing some volunteer work on an upgrade at the Cessnock golf course at which he was a member and he was riding in a modified golf buggy device driven by another member, that had a little trailer on the back and which had a tipping mechanism. That member went over a small bridge on the course area and he was momentarily distracted such that the buggy ran off the bridge and he was projected out the right side, down a distance of 12 feet into a dirt water lake below, jarring an injury in his left shoulder, such that when he stood up to come out he found he could not move his left shoulder. He went on to develop a frozen left shoulder then and had some early contact with physiotherapy and later, through Dr Daniel Posel, an orthopaedic surgeon practising in the Maitland area, he consented to a manipulation under anaesthetic done by Dr Posel at East Maitland Private Hospital at which he managed to free up movement quite successfully in follow-up physiotherapy and he was able to obtain far better enhanced range of motion back into the left shoulder again. When he continued to complain of dysaesthesia and nocturnal dysaesthesia affecting his right hand and he had an EMG study performed, that showed that he had carpal tunnel compression on the right side affecting him. In 2013 Dr Posel did a right carpal tunnel release for him at Maitland Private hospital on 20 August 2013 easing most of the symptoms in that hand that he had been experiencing." 1. Dr Posel's report of 20 August 2013 confirms that the discomfort that the plaintiff had in his right hand had been persisting as at 20 August 2013 for "12 months." However it would appear from both the general practitioner's records and from what Dr Harrison recorded, that the plaintiff's right carpal tunnel syndrome symptoms only came on sometime after the frozen left shoulder caused by the plaintiff's being projected into the lake at the golf course. That led Dr Posel to carry out a carpal tunnel release in 2013. Dr Posel's report also shows another possible cause of the carpal tunnel syndrome. The report says this: "Malcolm explained he has a golf tournament in early October 2013. Given his right carpal tunnel signs and symptoms, I have recommended a carpal tunnel release and to ensure that Malcolm is able to partake in this golf tournament in early October, I will perform his carpal tunnel release at East Maitland Private Hospital next Monday, 26 August 2013, as a day case procedure." Of course, golfing can cause golfer's elbow, that is medial epicondylitis but also another problem that it can cause is carpal tunnel syndrome. Accordingly I am not persuaded that the plaintiff could recover any lump sum compensation for the loss of efficient use of his right arm below the elbow as a consequence of his carpal tunnel syndrome nor the cost of the carpal tunnel release procedure performed by Dr Posel on 26 August 2013. 1. The next problem is an arthroscopic medial meniscectomy performed by Dr Posel at Lake Macquarie Private Hospital on 31 March 2014. In a report of 7 March 2014 Dr Posel said that the plaintiff developed left knee discomfort in October 2013 and that the plaintiff was unable to recall any particular injury. However I note that in the general practitioner's records a complaint about a left knee was recorded on or about 18 November 2013 and the doctor refers to the plaintiff's running in Tasmania six weeks previously leading to medial discomfort of his left knee. It would appear that the running episode in Tasmania precipitated symptoms in the left knee leading to surgery on the left knee performed at Lake Macquarie Private Hospital on 31 March 2014. Insofar as the plaintiff's claim for lump sum compensation depends upon the medial meniscectomy performed by Dr Posel, any such claim must fail. Further I am not persuaded that the plaintiff could recover the cost of the arthroscopic medial meniscectomy performed by Dr Posel in March 2014. 2. That then leads to consideration of the right knee problem. On 3 March 2015 the plaintiff's general practitioner recorded that the plaintiff then had right knee pain but he could recall sustaining no injury. The symptoms had been present not for three years which might take it back to the time of the plaintiff's work as a coal miner, but only for two weeks. That is confirmed by Dr Posel who in a letter of 19 March 2015 to the general practitioner recorded this history: "Some weeks ago, Malcolm reports walking his dog and developing right knee discomfort. There was no torsional injury to the knee. Discomfort has deteriorated over the past few weeks." That led to the diagnosis of a meniscal tear on the right side leading to arthroscopy at the East Maitland Private Hospital on 26 March 2015. Insofar as the plaintiff's claim for lump sum compensation depends upon the medial meniscectomy on the right side, such claim would fail and furthermore I am not persuaded the plaintiff could recover, if he pursued the current application the costs of the right medial meniscectomy just as he could not recover the cost of the left medial meniscectomy. 1. Bearing in mind those considerations, I believe that the sum proposed for redemption is reasonable. I approve the redemption. By consent, orders in accordance with short minutes of order which I have initialled and placed with the papers.