Reed v Coal & Allied Operations Pty Limited & Ors [2022] NSWDC 252

District Court New South Wales

Medium Neutral Citation: Reed v Coal & Allied Operations Pty Limited & Ors [2022] NSWDC 252 Hearing dates: 22 June 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Jurisdiction: Civil Before: Neilson DCJ Decision: I approve the redemption. Catchwords: COMPENSATION – SPECIAL STATUTORY COMPENSATION – COAL MINERS – REDEMPTION – Whether a synovial cyst at the L4-5 level of the spine was compensable. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Terrence Alfred Reed First Defendant – Coal & Allied Operations Pty Limited Second Defendant - Elcom Collieries Pty Limited' Third Defendant - The Newcastle Wallsend Coal Co Pty Ltd Fourth Defendant - Novacoal Australia Pty Limited Fifth Defendant - Mandalong Pastoral Management Pty Ltd Formerly Known as Newcom Collieries Pty Ltd Sixth Defendant - Centennial Myuna Pty Ltd Seventh Defendant – Ashton Coal Operations Pty Ltd Eighth Defendant – Yancoal Australia Pty Ltd Representation: Counsel: Plaintiff – Benson, D. Defendants – McMahon, S. Solicitors: Plaintiff - Whitelaw McDonald Solicitors & Attorneys Defendants - Sparke Helmore Lawyers File Number(s): 2022/00154750 Publication restriction: Nil.

Judgment 1. HIS HONOUR: Currently before me is an application for redemption. Part of the Plaintiff's claim is in respect of operative treatment to his low back in the form of the removal of large synovial cyst related to the L4‑5 facet joint that was thought to have been irritating both the L4 and the L5 nerve roots. The operation was performed by Dr John Christie, neurosurgeon. In his report of 26 June 2018 Dr Christie recorded this history: "About 6 weeks ago he developed quite severe pain across the back and right hip with pain radiating down the right leg and into the anterior shin. He was aware of some tingling in the foot at times. Initially the pain was quite severe and he had great difficulty standing or walking, but has eased off quite a bit." 1. Dr Christie saw an MRI scan which showed a large synovial cyst related to the L4‑5 facet joint that was thought to be irritating both the L4 and the L5 nerve roots. Dr Christie saw the Plaintiff again on 18 July 2018 and noted the plaintiff's symptoms had returned and that his symptoms were "quite severe". On 20 July 2018 Dr Christie decompressed the plaintiff's low back across the L4‑5 segment. He found a degenerative cyst in the epidural space and that there had been bleeding into that, which he thought may have been responsible for the deterioration in his symptoms. Post‑operatively, the plaintiff's symptoms were much improved and he went home following the surgery. 2. The plaintiff was reviewed by Dr Christie on 11 September 2018. The doctor on that occasion thought the plaintiff had a good result, and he made no complaint of pain since the surgery. On this occasion, Dr Christie referred to the cyst as a haemorrhagic synovial cyst, meaning a synovial cyst into which there had been bleeding. He went on to say this: "I have explained to him that this is part of a degenerative process and that although it is good to try and maintain fitness he still needs to try and take care of his back and I think he is aware of that." Dr Christie did not make any further arrangements to review the plaintiff at that time. 1. The Plaintiff retired from the mining industry on 20 May 2016. The onset of symptoms six weeks prior, to 26 June 2018, could not possibly be related to the work the plaintiff did in the coal mining industry. Furthermore, it is clear that the synovial cyst was degenerative and that is confirmed by the defendant's qualified orthopaedic surgeon, Dr Daniel Posel, who pointed out that it would be "tenuous" to seek to link the significant synovial cyst at the right L4‑5 facet joint with a lower back strain that occurred in 1985. Dr Posel went on to point out that this was a degenerative condition and that there was no evidence to establish that the plaintiff's work in the coal mining industry had been a contributing factor to that degenerative condition. 2. Accordingly, the plaintiff's claim, if it proceeded, insofar as it is based on the need for that surgery, would have failed because the surgery is not causally related to the plaintiff's work on any view of the evidence. Thank you very much, Mr Reed, you may stand down. 3. I approve the redemption. By consent orders in accordance with the short minutes of order which are initialled and placed with the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2022