Caban v Thiess Pty Ltd

File Number(s): 2024/00273343

Publication restriction: Nil.

Judgment

1. HIS HONOUR: Currently before me is a motion, notice of which was filed on 29 April 2025. The principal relief sought in the notice of motion is this:

"The proceedings be struck out on the grounds that the plaintiff has previously redeemed his rights and entitlements to compensation as a coal miner pursuant to both the Workers' Compensation Act 1926 and the Workers' Compensation Act 1987 (as applicable to coal miners)."

2. The current proceedings are now identified in an amended statement of claim which was filed on 23 August 2024, and upon which I gave the plaintiff leave to proceed today. It has been further amended today. The plaintiff brings his claim against Thiess Pty Ltd of 179 Grey Street, South Bank in the State of Queensland.

3. The plaintiff claims weekly payments of compensation from 29 August 2022 pursuant to either s 9 or s 11 of the Workers' Compensation Act 1926 as those sections are preserved pursuant to Sch 6 Pt 18 of the Workers' Compensation Act 1987. He also claims lump sum compensation under s 66 for 20% permanent loss of use of the right arm below the elbow and 10% permanent loss of use of the left arm below the elbow, as well as a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from those two losses. He also seeks a general order under s 60 for the payment of his hospital, medical and like expenses.

4. The plaintiff relies upon this allegation of injury:

"(a) During the course of his employment from 12 August 2018, the plaintiff has been exposed to:

(a) regular whole body jarring and vibrations as a result of operating various plant equipment over full shifts, over rough roads and dumps;

(b) regularly climbing over and descending stairs, requiring the use of arms and shoulders.

(c) regularly lifting, bending, constant kneeling, lifting various weights, traversing uneven ground.

The work activities referred to above have caused, aggravated, exacerbated and/or accelerated his injuries and conditions.

Operation of diggers and dozers requiring the constant use of levers, the right arm controls the blade and ripper levels. The arm is on the levers for the whole shift and also exposed to a lot of vibration.

The left arm is similarly exposed and/or is a consequential injury to the right.

The plaintiff, as a consequence of his work, contracted a disease, namely degenerative disease of the right arm and the left arm to which such work was a contributing factor: s 4(b)(i). Or alternatively, or in addition, the said disease was aggravated, accelerated, exacerbated and/or caused to deteriorate by the plaintiff's work - s 4(b)(ii)."

The rest of the form of the statement of claim has not been adequately completed. The nature of the injury pleaded is injury to the left arm and to the right arm.

Prior Proceedings

5. This is at least the second set of proceedings brought by the plaintiff. The plaintiff's first set of proceedings, as far of which I am aware, is an application that he made to the Compensation Court of New South Wales on 12 February 2002. That bore the plaint number 3408 of 2002. The proceedings were commenced on 12 February 2002. In proceedings in that Court, the moving party was called the applicant, and the party against whom the proceedings were brought was known as the respondent. The respondent in those proceedings was Warkworth Mining Ltd of Putty Road at Mount Thorley. The application nominated ten different injuries with Roman numerals. They are these:

“i. On 2 June 2000 during the course of his employment with the respondent the applicant was driving a 170-tonne dump truck when he hit an excavator hole and suffered injury.

ii. On 3 September 1994 the applicant was driving a 170-tonne dump truck on a haul road when he was jarred and suffered injury.

iii. In August 1998 the applicant was using a bulldozer to rip white rock when he suffered injury.

iv. In December 1998 the applicant was changing filters under a truck when he twisted and suffered injury.

v. On 3 March 1999 the applicant was driving a 120-tonne dump truck when he hit a rock and suffered injury.

vi. On 11 July 2000 the applicant was fuelling up a pump at the West Pit South when he stepped off the catwalk down onto a steel platform and fell on spilled fuel and suffered injury.

vii. On 7 December 2000 the applicant was driving a truck when the loader struck both sides of the truck and he suffered injury.

viii. On 9 April 2001 the applicant was driving a truck when he hit a soft spot in the road and he suffered injury.

ix. The nature and conditions of the applicant's employment with the respondent have caused, aggravated, exacerbated and/or accelerated his injuries and conditions.

x. The applicant, as a consequence of his work, contracted a disease, namely degenerative disease of the neck, left arm, right arm and back to which such work was a contributing factor - s 4(b)(i). Alternately or in addition, the said disease was aggravated, accelerated, exacerbated and/or caused to deteriorate by the applicant's work, s 4(b)(ii)."

6. The injury was described as injury to the back, neck and arms. There was a claim for weekly payments of compensation from 2 June 1990 to date and continuing pursuant to s 11(1) of the Workers' Compensation Act 1926 and claims for lump sum compensation for impairment of the neck, permanent loss of use of the left arm at or above the elbow, permanent loss of use of the right arm at or above the elbow and for 25% impairment of the back, and a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from those losses and impairments.

7. Those proceedings were undecided on 1 January 2004, on which date the Compensation Court of New South Wales was abolished. The jurisdiction concerning coal miners' workers' compensation was then transferred to this Court. The matter eventually came on for hearing before Bishop DCJ on 26 May 2004. On that occasion, Mr Brown of counsel appeared for the plaintiff and Mr Odling of counsel appeared for the defendant.

8. An application for redemption was put to his Honour. His Honour approved the redemption and made orders in accordance with the Short Minutes of Order, as well as a particular order as to costs. The Short Minutes of Order can be found on page 59 of the affidavit of Mr Najeh Marhaba, sworn on 29 April 2025, which is Exhibit 1-1 on this application.

9. The Short Minutes of Order are entitled in the District Court of New South Wales and, although the matter was in the coal miners' workers' compensation list, the Short Minutes of Order referred to the "mining division", which was clearly erroneous. When the Compensation Court was abolished, the proceedings were given a new matter number, namely RJ3908 of 2002. The Short Minutes of Order are made between the plaintiff worker and the defendant employer. They are these:

"By consent:

1. Liability of employer to make weekly payments in respect of the injuries referred to in the Statement of Claim\Application for Determination and in the Schedule of Injuries attached hereto and marked with the letter 'A' may be redeemed in whole as from 1 January 1982, by payment of $92,500 in addition to any payments made.

2. Employer to pay the workers' costs, 2 qualifying fees and an advice on evidence.

3. Noted that the worker agrees the said sum also redeems liability under ss 10 and 16 of the Workers' Compensation Act, 1926 (as amended), and under Divisions 3 and 4 of Part 3 of the Workers' Compensation Act 1987 (as amended), excluding industrial deafness.

4. Noted that the worker agrees to the employer to execute a common law release if called upon to do so.

5. Other orders or notations:

(a) Payment of the lump sum will also redeem the employer's liability in respect of injuries and incidents of injury arising out of or in the course of the worker's employment with the employer including injuries from the nature and conditions of the said employment and including injuries to the head, neck, back, pelvis, both shoulders, both upper and lower limbs, functional overlay, taste, sight, smell and the aggravation, acceleration or causation of any disease including disease of the heart and industrial deafness, except as provided in paragraph 3, excluding disease of the lungs.

(b) The worker agrees that because of his injuries, disabilities and consequent need to protect his future health and welfare he is not fit for work about, or in connection with, the operation of a coal or shale mine and agrees not to accept employment or to work in any capacity (including, without limitation, as an employee, independent contractor, outworker, tributer, mine worker within the meaning of the Coal and Oil Shale Mine Workers (Superannuation) Act 1941; volunteer or rescuer) about or in connection with the operations of a coal or shale mine in New South Wales."

10. On pages 60 and 61 of the affidavit of Mr Marhaba are the annexure A to the Short Minutes of Order. They record a number of incidents of injury all at the Warkworth open-cut mine. It is common ground that the redemption money of $92,500 was paid to the plaintiff.

11. Exhibited to Mr Marhaba's affidavit at page 57 is a form of consent to redemption application which had been signed by the present plaintiff. The date of the consent was 26 May 2004, the day when Bishop DCJ approved the redemption application.

Variation permitting plaintiff to rejoin the industry

12. Exhibit 2-2 is a Short Minute of Order, a copy of which was signed by Mr Luke Roberts, the Head of Operations Management with Coal Mines Insurance, on 12 November 2018. It was subsequently filed in the registry of this Court here at Newcastle. The relevant order is this:

"The Short Minutes of Order dated 26 May 2002 to be amended by deleting paragraph 5(b)."

Unnecessarily, the Short Minutes, went on to confirm the balance of the Short Minutes of Order made on 26 May 2002. It would appear that Coal Mines Insurance agreed to the deletion of clause 5(b) which would permit the plaintiff to re-enter the coal mining industry.

13. It is clear from the amendment made to the amended statement of claim today and that on 12 August 2018 the plaintiff had re-entered the coal mining workforce, but the Short Minute of Order was not formally amended until 12 November 2018. That can only have come about because it was realised by the parties that formally clause 5(b) of the Short Minutes of Order of 26 May 2002 prevented the plaintiff re-entering the coal mining industry, but that appears to have been agreed to by the parties and, eventually, the Short Minute of Order 5(b) was deleted.

The defendant’s contention

14. The defendant argues that the redemption entered into on 26 May 2002, and the payment of money consequent upon the approval of the redemption, prevents the plaintiff from maintaining these proceedings.

15. Mr Doupe for the defendant relies upon my decision in Mount Thorley Operations Pty Ltd v Farrugia [2020] NSWDC 798 (‘Farrugia’). It is fairly clear, from the evidence before me, that the plaintiff is relying, in the current proceedings, on bilateral carpal tunnel syndrome causing his incapacity for mining work and causing a loss of efficient use of each of his arms; probably, correctly looked at, as below the elbow. It is clear that, before the old redemption, the plaintiff had problems with both his hands which were certified as being consistent with carpal tunnel syndrome.

Medical Evidence

16. In Exhibit 11 is a copy of the report of Dr R J Pauley, a general practitioner. He reported that his first contact with the plaintiff was on 5 May 1994, when he was complaining of slowly increasing neck pain. According to Dr Pauley, symptoms progressively manifested with numbness in each hand. He then records this:

"16 June 1994: X-rays reported as normal, nerve conduction study 14 June 1994 right greater than left median nerve entrapment combined with carpal tunnel syndrome. More proximal nerve involvement not demonstrated."

He went on to record that, on 24 June 1994, a referral was made to Dr Miles, a general surgeon, for the performance of carpal tunnel surgery. That surgery was performed on the right-hand side on 11 September 1998. In addition to complaining about his hands, the plaintiff was also complaining of symptoms in the cervical spine, the lumbar spine and the thoracic spine. On 8 July 1998, Dr Pauley noted that there were still carpal tunnel symptoms evident, and clearly that was before the plaintiff underwent carpal tunnel surgery.

17. One of the doctors who saw the plaintiff at this time was Dr Bernard Zicat, an orthopaedic and trauma surgeon who was retained by the plaintiff's then-solicitors, Reid & Reid. After referring to an event in September of 1994 when a vehicle the plaintiff was driving hit a rock, causing jarring to his neck and upper back and requiring investigation by way of a CAT scan, the doctor continues thus:

"He was treated with physiotherapy, chiropracty, non-steroidal anti-inflammatory medication and Ducene. From then on for the next four years he had periods of re-injury while driving heavy machinery, that required approximately four to six weeks on light duties approximately every six to twelve months. During that time he also began to develop symptoms of numbness and tingling in his right arm and hand. This began in approximately 1996 and was aggravated by working, particularly driving the heavy machinery and turning the wheel. He underwent right arthroscopic carpal tunnel release in July of 1998, that improved his symptoms for a brief period of time, and his symptoms have become increasingly severe again since then."

18. The time of that examination was 12 May 1999. When speaking of the plaintiff's then-condition, that is, at the time of the doctor's examination, he said this:

"The tingling in his right hand has become worse since his carpal tunnel surgery on the right. It currently affects both his hand and his arm when he is sleeping, with the entire arm becoming somewhat numb. His hand and fingers are predominantly affected when he is driving, and using his hands on the steering wheel."

On examination, Dr Zicat found that Tinel's sign was positive bilaterally; that is a sign referable to carpal tunnel syndrome. Dr Zicat went on to say this:

"He appears to have had a 'double crush' phenomenon, and developed symptomatic carpal tunnel syndrome that required decompression on the right-hand side. The result of that surgery was initially positive and he has since had recurrence of his symptoms. He continues to have bilateral radicular symptoms that cause tingling and numbness sensations into both arms and hands."

19. The doctor went on to diagnose a 10% loss of efficient use of the left arm at or above the elbow to include the segment below the elbow of 10%. He also diagnosed a permanent loss of efficient use of the right arm below the elbow of 5%. How that compares with the current assessments of the loss of efficient use of each of the arms is a very interesting question, however, that is not the issue currently before me.

The issue

20. The issue currently before me, as it was in Farrugia, is the proper construction of the Short Minutes of Order, referable to the first redemption, bearing in mind what is pleaded in the current proceedings. At the time of the earlier redemption, 26 May 2004, it was impossible to plead injuries occurring on and after 12 August 2018. No human being has that form of foresight.

21. The liability, and that was redeemed by the earlier redemption, was the liability of an employer, Warkworth Mining Ltd, whom one assumes was the operator of the Warkworth coal mine.

22. The plaintiff has been seen, for the purpose of these proceedings, by Mr Sebastian Bass, a psychologist. Mr Bass took this employment history:

"1980-1982 Finn Holden

Apprentice motor mechanic

1983-2003 Warkworth colliery

Operative

2005-2008 Roach blasting

Shot firer

2009-2017 Drayton colliery

Mobile plant operator

2018-2024 Thiess

Mobile plant operator"

23. The last of those five employers was clearly the current defendant; the applicant on this motion. The current defendant seeks to rely on a redemption paid on behalf of Warkworth colliery, presumably by its insurer, which is probably the same insurer as the one that underwrites the liability of the current defendant/applicant.

24. The forms of order for redemption that I have been dealing with now for almost 49 years, always have redeemed the liability of the employer, or employers, who make the application(s). In more recent times, there has been the practise of seeking to list every injury that a coal miner has experienced in the coal mining industry and redeem liability in respect of all such injuries, whether the employer is nominated formally as a plaintiff or as a defendant in proceedings or not. Even more recently has been the practise of seeking to list every employer by whom the worker has been employed in the coal mining industry as a person who is to receive the benefit of the redemption.

25. The simple fact is one cannot redeem a liability of a future employer whose identity is not known at the time that the redemption is made, nor is it known that such an employer will employ the formerly injured worker, and when it is not known what type of injury the worker might sustain in the course of his employment with the future employer. That is a legal impossibility.

26. In argument, it was postulated that, where the medical condition is the same both before and after a redemption, that the liability of the employer of the future is redeemed because the worker has suffered the symptoms of the same condition in the past. But that raises a real difficulty. What, for example, if a worker who previously had a 10% loss of efficient use of the left arm below the elbow has, by an unforeseen future accident, had the arm severed at the shoulder? Does one apply the rule in Rodios v Trefle [1937] WCR 290; [1937] 54 WN (NSW) 197 or does one only recover the 90% loss under the new regime?

27. In my view, the only liability that has been redeemed by the redemption is the liability of Warkworth Mining Ltd for any injury which befell the plaintiff in that employment. In Farrugia, I was dealing with a different issue. After the redemption had taken place, in that case, by its being approved by the Court and paid to the worker, the worker had diagnosed some skin damage without having returned to any form of coal mining. The last mine in which he had worked had the benefit of the redemption. The essential element that I determined in Farrugia was that the skin was an organ of the body and therefore covered by the terms of the redemption. There had been no work, as I said, after the redemption in the coal mining industry. That is a very different issue to the current one.

28. For those reasons, the motion is dismissed. I order the defendant to pay the plaintiff's costs of the motion.

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