Pender v Centennial Angus Place Colliery and Yates Pty Limited [2021] NSWDC 459

District Court New South Wales

Medium Neutral Citation: Pender v Centennial Angus Place Colliery and Yates Pty Limited [2021] NSWDC 459 Hearing dates: 05-08 April 2021 Date of orders: 08 April 2021 Decision date: 08 April 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: See [54]-[55] Catchwords: COAL MINERS WORKERS COMPENSATION – Claim for weekly payments, ongoing – Whether injury to P's left knee working for 2D resulted in an incapacity – Claim for lump sum compensation – Assessments of impairment of neck, back and loss of use of left arm at or above elbow, and s67 therefor – Claim for lump sum for loss of use of right arm unable to be made until after surgery is performed. Legislation Cited: Workers Compensation Act 1926 Workers Compensation Act 1987 Cases Cited: Aitkin v Goodyear Tyre and Rubber Company (Australia) Limited (1945) 46SR (NSW) 20 Category: Principal judgment Parties: Plaintiff – Kevin B. Pender 1st Defendant – Centennial Angus Place Colliery 2nd Defendant –Yates Security Pty Limited Representation: Counsel: Plaintiff – D. Benson 1st Defendant – S. McMahon 2nd Defendant – S. Haligan Solicitors: Plaintiff – Barry F. Cosier & Associates Solicitors 1st Defendant – Sparke Helmore 2nd Defendant – Hicksons Lawyers File Number(s): RJ00228/19 Publication restriction: Nil.

Judgment 1. HIS HONOUR: The plaintiff is a former coal miner. He was born in Lithgow in November 1959. He is currently 61 years old. He left school halfway through year 9 in 1975. He then joined the State Rail Authority of New South Wales. His initial employment was as a station hand. Whether he was called a station boy at that time or a station assistant is not clear. However, he had various roles in the SRA and eventually ended up as a shunter. 2. On 31 August 1989, having left the SRA, the plaintiff commenced working in the coal mining industry at the Baal Bone Colliery, which is just north of Lithgow. At the time he was 29 years and nine months old. He was a federation coal miner. As is usual in cases of this nature, I have had a long description of his work as a coal miner. There is no dispute that it is heavy, demanding work. He has always worked as an underground coal miner. He worked in, obviously, coal shafts. He was subjected to adverse climactic conditions and adverse physical condition in that he had to work in mines and walk over rough and uneven surfaces and the like. He was often involved in heavy lifting and carrying, and his work threw force on all aspects of his spinal column and on the joints of his body, including his knees, hips, ankles and shoulders. Indeed, compared with most other manual vocations, the work of a coal miner could be said to throw excessive strain on the spinal column and joints of the body as well, clearly, as the musculature.