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[2026] NSWCA 139
appellant. Appeal allowed; the District Court orders made on 5 September 2025 were set aside; the matter was remitted to the District Court in its compensation jurisdiction for determination in accordance...
The Court of Appeal did not decide that Kedwell had proved his compensation claim. It decided that the trial judge had not resolved one pleaded way in which Kedwell said work contributed to his back condition, and had rejected the separate bathhouse incident case using a medical-causation theory that was not supported by expert evidence or put to Kedwell for an answer. Those were errors of law. The Court therefore set aside the District Court decision and sent the matter back for determination.
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2,207 words · generated 07/10/2026
Craig Kedwell appealed from a District Court decision in favour of his employer, Clarence Colliery Pty Limited. His claim concerned back problems that culminated in an L5/S1 disc prolapse, right-sided L5 radiculopathy and surgery. He sought weekly payments, expenses and permanent impairment compensation ([2], [21]-[23]).
17 cited instruments linked from this judgment.
There were two material ways of characterising the claimed injury. First, Kedwell pleaded that over the course of his employment he developed intermittent back pain due to repetitive heavy lifting. Second, he alleged a specific workplace incident on 20 September 2022, when he was changing in the bathhouse before his shift and felt sudden pain after turning to hang his shirt ([17]-[19], [28]). The appeal concerned whether the District Court dealt with both parts of that case and whether it was procedurally fair to reject the specific incident using the primary judge’s own medical-causation analysis.
The medical history included earlier back treatment and imaging. In 2019, an MRI showed disc bulges, including at L4/5 and L5/S1 ([10]). In 2022, Kedwell attended chiropractic appointments for lower back pain, including appointments in September ([14]-[15]). On the morning of 20 September, he saw a GP and received an MRI referral recording “chronic back pain” ([16]). He said that later that day, at about 1:40 pm, he felt a “thud” in his lower back while changing at work, but completed his shift ([17]). A later MRI identified L4/5 and L5/S1 disc disease, worse at L5/S1 on the right, with an annular fissure and nerve impingement ([21]). He had surgery in December 2022 ([23]).
The medical opinions differed about causation. Dr Spittaler considered the employment the main contributing factor, but said the heavy lifting in the preceding weeks was significant and the bathhouse movement was not necessarily the significant incident ([31]-[32]). Dr Herald described work-related degeneration as likely, alongside what he called a “frank injury” ([34]). The employer’s experts gave differing views, including that the acute episode was likely to have occurred regardless of the work activities described ([36]-[38]).
The primary judge focused on whether an injury occurred on 20 September. He considered the asserted mechanism implausible, reasoning that annular tearing usually involved axial overload or torsional stress, and that Kedwell was standing upright rather than bending ([39]). The judge also concluded that work might have worsened the degenerative condition but had not caused the tear, and that the claimed incapacity and surgery resulted from the rupture ([41]). The Court of Appeal held that this reasoning did not dispose of the separate statutory aggravation case and that the specific incident analysis raised a procedural fairness problem.
The first error was a failure to determine a pleaded issue. The Court of Appeal read the amended statement of claim as pleading two injuries, not only a discrete incident on 20 September ([46]). The gradual case was that heavy lifting at work contributed to back problems that developed over time and culminated in the condition requiring surgery. The relevant legal question was whether this amounted to an aggravation, acceleration, exacerbation or deterioration of a disease where employment was a contributing factor ([46]).
The court identified which statutory definition applied. For a coal miner, the 2012 amendments that introduced a “main contributing factor” test did not apply. Schedule 6 Pt 19H, cl 26 of the 2012 Amending Act provided that the amendments did not apply to injuries received by coal miners, and that the legislation applied as if they had not been enacted ([26]). The relevant s 4 therefore required employment to be “a contributing factor”, rather than the main contributing factor, to the aggravation, acceleration, exacerbation or deterioration of disease ([27]).
The Court of Appeal pointed to evidence and submissions relevant to that question. It noted Dr Spittaler’s view that heavy lifting over several weeks had weakened the disc annulus and that the employment was the main contributing factor to the injury ([31], [46]). It also noted Dr Herald’s view that the degeneration most likely occurred as a result of the nature and conditions of employment ([47]). In closing submissions, Kedwell’s counsel had argued that the evidence showed an evolving back injury before the bathhouse event ([48]). The primary judge had accepted that the work may have made the degenerative condition worse, but did not decide whether that amounted to an “injury” under the applicable Act ([49]). The appellate court held that this omission was an error in point of law.
The second error concerned the reasoning used to reject the specific incident case. The primary judge reasoned that annular tears usually result from axial overload or torsional stress, and concluded there was no axial overload because Kedwell was standing upright ([39], [51]). The Court of Appeal observed that the judge did not explain why the movement could not have involved torsional stress, given that Kedwell’s evidence was that he twisted to the right ([51]).
More fundamentally, the causal analysis was the primary judge’s own. It was not based on expert evidence and did not reflect submissions made to him. The Court held that if the judge was going to rely on that analysis to reject Kedwell’s case, Kedwell needed an opportunity to answer it. The failure to give him that opportunity was another error in point of law ([51]). The judgment does not decide that the judge’s theory was medically incorrect. Its point is that the theory was not a proper basis for rejecting the claim without putting it to the parties.
This judgment addresses the law applicable to coal miners’ claims in New South Wales and the procedural requirements for deciding a contested compensation claim. It does not purport to change the statutory definition. Instead, it explains which version applied to Kedwell’s claim and identifies errors in how the primary judge addressed that definition.
The statutory history matters. The Court explained that amendments made in 2001 did not apply to coal miners in the relevant respects, and that the 2012 amendments imposed a “main contributing factor” test for disease injuries generally ([3], [25]). However, cl 26 of Sch 6 Pt 19H preserved the former position for coal miners. For Kedwell, the applicable version of s 4 treated as an injury the aggravation, acceleration, exacerbation or deterioration of any disease where employment was “a contributing factor” ([26]-[27]).
The judgment’s application of that rule is important: once the claim was pleaded and argued as gradual aggravation, the primary judge had to decide whether the evidence met the statutory definition. A finding that work may have worsened a degenerative condition did not, by itself, answer whether that condition amounted to a compensable injury. The Court of Appeal held that the judge needed to address that statutory question expressly ([41], [49]).
The procedural point is similarly focused. The judgment does not establish a general rule that judges cannot draw inferences from evidence or use ordinary reasoning. Rather, where a judge relies on an unheralded causal analysis, unsupported by expert evidence or party submissions, to reject a party’s case, fairness requires an opportunity for that party to address the analysis ([51]). The Court treated the failure to provide that opportunity as an error in point of law in this appeal.
The procedural result was remittal, not a finding that Kedwell had proved injury or entitlement to compensation. The Court said the outcome still depended on the medical evidence about the gradual aggravation case and on whether Kedwell’s evidence about the bathhouse incident should be accepted ([55]). It also said it could not assess the compensation payable if he succeeded ([55]).
At [27], the Court identifies the relevant statutory test: employment had to be “a contributing factor” to the aggravation, acceleration, exacerbation or deterioration of disease. In plain English, the applicable test for this coal miner did not require employment to be the main cause. It did, however, require a finding on whether employment contributed in the way described by the statutory definition.
At [46], the Court explains what the unaddressed part of the claim required the primary judge to decide. Kedwell’s ongoing back problems and eventual surgery had to be considered as possibly involving the work-related aggravation or deterioration of a disease. Put simply, the claim was not limited to whether one movement in the bathhouse caused a sudden injury.
At [49], the Court states that the primary judge had not decided whether the accepted possibility that work worsened the degenerative condition was sufficient to establish an injury under the Act. The practical significance is that factual observations about work and degeneration do not replace a decision applying the statutory definition to the pleaded case.
At [51], the Court explains the fairness error. The judge’s explanation about axial overload and torsional stress was not drawn from expert evidence or submissions, and Kedwell had no chance to address it. In plain English, a party should not lose on a decisive theory developed by the judge without being given a fair opportunity to respond.
At [55], the Court explains why it did not determine the claim itself. The specific incident depended on an assessment of Kedwell’s evidence, which the primary judge had rejected, while the compensation amount had not been assessed. The appeal corrected the legal errors but did not resolve the underlying factual and compensation questions.
The decision is relevant where a compensation claim pleads more than one way of establishing injury and the trial reasons deal with only one. Here, the pleading identified both gradual back problems associated with repetitive heavy lifting and a specific event while changing at work ([28], [46]). The Court treated the failure to decide the statutory character of the gradual condition as an error.
It is also relevant where the worker’s claim concerns the aggravation or deterioration of a pre-existing or degenerative condition, rather than only a new, discrete injury. The medical evidence included earlier lumbar findings and later opinions about whether work contributed to the degeneration or acute episode ([10], [31]-[38]). The decision requires attention to the statutory test applicable to the worker, including any special provisions governing coal miners ([26]-[27]).
The procedural fairness reasoning may be engaged where a judge proposes to reject a party’s account by relying on a technical or causal proposition that was not given in evidence or put in submissions. The relevant features here were that the primary judge supplied his own account of how annular tearing occurs, applied it to the worker’s movements, and did not give the worker an opportunity to answer that analysis ([39], [51]). The court’s reasoning is tied to those circumstances; it should not be read as deciding that every judicial inference requires expert evidence.
The case also shows why an appeal limited to a point of law may result in remittal rather than an appellate finding on liability. The decisive issues remained dependent on evidence and credibility assessments that the Court of Appeal said it could not make for itself ([55]).
The judgment provides no account of how later courts have treated Kedwell. It was decided on 21 July 2026, and the supplied text contains no subsequent judicial consideration. No claim about later adoption, limitation or distinction can therefore be made from this source.
The judgment does identify authorities it used or mentioned. It cites Ellavale Engineering Pty Limited v Pilgrim for the continuing special position of coal miners in the compensation legislation ([3]). It cites Keogh v CPB Contractors Pty Ltd (No 2) in connection with the statutory version applicable to coal miners ([27]). It also notes that Clarence Colliery relied on Azzopardi v Tasman UEB Industries Ltd regarding review of fact-finding, but says it was unnecessary to address that reliance because the two errors in point of law were sufficient to resolve the appeal ([52]). These references show the authorities considered in this judgment, not how later courts have applied Kedwell.
The remitted proceedings left the central merits questions unresolved. The District Court still had to determine whether the L5/S1 disc prolapse and right-sided radiculopathy constituted an aggravation, acceleration, exacerbation or deterioration of disease to which employment was a contributing factor, or whether an injury occurred at work on 20 September 2022 ([55]).
The judgment does not determine whether Kedwell’s evidence about the bathhouse incident should ultimately be accepted. It records that the primary judge rejected his evidence for several reasons, and that this Court could not make the necessary factual assessment on appeal ([40], [55]). Nor does the judgment decide what compensation, if any, would follow from a finding of liability ([55]).
The decision also does not resolve medical causation between gradual work activities, pre-existing degeneration and the particular event. It identifies conflicting medical opinions and explains why the statutory and procedural questions required further determination, but does not choose between those opinions ([29]-[38], [55]). It leaves open how the District Court would assess the evidence under the correct statutory test and after addressing the issues identified by the Court of Appeal.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kedwell v Clarence Colliery Pty Limited [2026] NSWCA 139
Hearing dates: 17 June 2026
Date of orders: 21 July 2026
Decision date: 21 July 2026
Before: Ward P at [1]
Ball JA at [2]
Griffiths AJA at [58]
Decision: (1) Appeal allowed;
(2) Set aside the orders made by the District Court on 5 September 2025;
(3) Remit the matter to the District Court in its compensation jurisdiction for determination by that court in accordance with the decision of this Court;
(4) The costs of the hearing before Neilson DCJ be costs in the cause;
(5) The respondent to pay the appellant’s costs of the appeal.
Catchwords: WORKERS COMPENSATION – coal miners – claim for weekly payments, expenses and compensation for permanent impairment – where primary judge failed to address the question whether the appellant sustained an “injury” within the meaning of the Workers Compensation Act 1987 (NSW) as applicable to coal miners – error in point of law established
WORKERS COMPENSATION – independent analysis of causation by primary judge – primary judge’s conclusions not based on expert evidence, not reflective of any submission made, and not put to the appellant – error in point of law established
Legislation Cited: Coal Mine Health and Safety Act 2002 (NSW)
Compensation Court Repeal Act 2002 (NSW)
District Court Act 1973 (NSW), s 142N, Div 8A
Workers Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW), s 4, Sch 6 Pts 18, 19H
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272
Kedwell v Clarence Colliery Pty Limited [2025] NSWDC 417
Keogh v CPB Contractors Pty Ltd (No 2) [2024] NSWDDT 9
Category: Principal judgment
Parties: Craig Anthony Kedwell (Appellant)
Clarence Colliery Pty Limited (Respondent)
Representation: Counsel:
R Sheldon SC with E Welsh (Appellant)
L King SC with SR Doupe (Respondent)
Solicitors:
Brydens Lawyers Pty Limited (Appellant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2025/379201
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Craig Kedwell claimed compensation under the Workers Compensation Act 1987 (NSW) (the WC Act) for injury sustained in the course of his employment as a coal miner with Clarence Colliery Pty Limited (Clarence Colliery). In proceedings commenced in the Coal Miners Workers Compensation List of the District Court, Mr Kedwell pleaded that “[o]ver the course of [his] employment, he developed intermittent back pain due to repetitive heavy lifting in the course of his employment” and that he had sustained injury on 20 September 2022. The primary judge was not satisfied that Mr Kedwell had sustained an injury on 20 September 2022 and gave a verdict for Clarence Colliery.
Mr Kedwell appealed to this Court under s 142N of the District Court Act 1973 (NSW), which relevantly provides for a right of appeal in point of law. Mr Kedwell’s appeal raised two points: (1) that the primary judge did not deal with Mr Kedwell’s pleaded case that “[o]ver the course of [his] employment, he developed intermittent back pain due to repetitive heavy lifting in the course of his employment”; and (2) that the primary judge rejected Mr Kedwell’s claim that he suffered an injury on 20 September 2022 for reasons which were not the subject of evidence, were based on his Honour’s own medical knowledge and were not raised with the parties during the hearing.
The Court (Ball JA, Ward P and Griffiths AJA agreeing) held, allowing the appeal and remitting the matter to the District Court:
WARD P: I agree with Ball JA.
BALL JA: This appeal concerns an award in favour of the respondent, Clarence Colliery Pty Limited (Clarence Colliery), by the District Court (Neilson DCJ) in respect of a claim by the appellant, Mr Craig Kedwell, for compensation under the Workers Compensation Act 1987 (NSW) (the WC Act). Mr Kedwell alleged that he had been injured in the course of his employment as a coal miner with Clarence Colliery at its mines near Newcastle and claimed weekly payments, expenses and compensation for permanent impairment under the WC Act in respect of that injury: see Kedwell v Clarence Colliery Pty Limited [2025] NSWDC 417 (Primary Judgment or PJ).
The effect of the provisions of Sch 6 Pt 18 of the WC Act, titled “Special provision relating to coal miners”, is that (a) claims for weekly compensation for incapacity are treated as being brought under the relevant provisions of the Workers Compensation Act 1926 (NSW) (the 1926 Act), and (b) amendments to the WC Act introduced in 2001 abolishing the right to seek damages for non‑economic loss in respect of work-related injuries do not apply to coal miners, with the result that coal miners retain the right to claim common law damages in accordance with the provisions in the WC Act as it was prior to those amendments. That preferred position for coal miners has been maintained in the amendments made to the WC Act since its introduction: see Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272 at [2] (Handley JA); [21]-[22] (Beazley JA).
Following the abolition of the Compensation Court by the Compensation Court Repeal Act 2002 (NSW), jurisdiction in respect of workers compensation claims in the coal mining industry is vested in the District Court: see District Court Act 1973 (NSW), Div 8A. This appeal is brought under s 142N of the District Court Act, which relevantly provides:
Appeal to Court of Appeal on question of law
(1) If a party to any proceedings before the Court in its compensation jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.
(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the District Court in its compensation jurisdiction for determination by that Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit.
(3) A decision of the Court of Appeal on an appeal under this section is binding on the District Court and on all the parties to the proceedings in respect of which the appeal was made.
Mr Kedwell had received treatment for back pain several years before he commenced his employment with Clarence Colliery. While the medical records in evidence are not complete, the earliest record of that treatment is a consultation on 4 October 2017 with a general practitioner, Dr Maninder Deep.
Dr Deep recorded the following history:
off for a few nights … from work.
monday night had [abdominal] pain and radiating into the back.
now pain in the back.
nil trauma.
laying around.
stomach has settled down.
sweating on and off
…
works in underground mine.
Dr Deep recorded an impression of “viremia”, arranged for swabs to be taken, prescribed Panadol to be taken every 6 hours, and advised Mr Kedwell to return for review after 72 hours or earlier if he had concerns or felt unwell.
Mr Kedwell received further treatment in 2019. This included an MRI scan of his brain, cervical spine and lumbar spine performed on 14 May 2019 on referral from Dr Shabbir. The records in evidence do not include a copy of the referral or the notes of the consultation from which the referral would have originated. The report on the results of the MRI scan, which was prepared by Dr John Lewis, relevantly states:
At the L4/5 level, there is a small diffuse disc bulge, not significantly narrowing the canal or foramina.
At the LS/S1 level, there is a small right far lateral disc protrusion, slightly displacing the right L5 nerve root in its extraforaminal course. This is of questionable clinical significance. The canal and foramina are preserved. The S1 nerve roots exit normally.
COMMENT:
* Small right far lateral disc bulge is causing slight displacement of the right L5 nerve root in its extraforaminal course. This is of uncertain significance to the current clinical presentation.
* More diffuse disc bulges are present at L4/5 and L2/3, not significantly narrowing the canal or foramina.
Mr Kedwell saw Dr Sasitharan at Good Practice GP Surgery in East Branxton on 12 July 2019, complaining of neck pain and tingling in both arms. Dr Sasitharan recorded a diagnosis of “cervical disc prolapse” and referred Mr Kedwell to Dr Peter Spittaler, neurosurgeon.
On 29 August 2019, Dr Spittaler saw Mr Kedwell and reported:
[Mr Kedwell] developed paraesthesia in his left hand and foot about four months ago which led to exclusion of cerebrovascular disease with an MRI of the brain. He also had the MRI done of his cervical spine and lumbar spine. On the MRI of his cervical spine he has quite severe disc degeneration at C5/6 and C6/7 without any canal stenosis but he does have foraminal stenosis at both of these levels. He doesn’t have any arm pain but he has persisting paraesthesia in the hands which affects him more during the day than at night. On examination there is a negative Tinel’s in both hands.
My suspicion is that Mr Kedwell has bilateral carpal tunnel syndrome. I have referred him for nerve conduction studies from Michael Katekar and organised review in several weeks.
In mid-2019 Mr Kedwell also received treatment from practitioners at Little Sprouts Chiropractic (LSC). He saw Mr James Fulcher at that practice on 21 June 2019 and returned frequently over the following months, attending on some 10 further occasions in June, July and August 2019 in relation to pain in his neck and lower back, and pins and needles in his arms. After attending on 1 August 2019, however, Mr Kedwell did not return to LSC until March 2022. He then attended on 11, 18 and 25 March 2022. As the primary judge observed, Mr Kedwell received treatment in relation to his cervical spine, but on 18 and 25 March also received trigger point dry needling on his right hamstring.
On two occasions in July 2022, Mr Kedwell received treatment from practitioners at LSC for lower back pain. He attended again on 9 September 2022, after which the frequency of his consultations increased. On 9 September Mr Kedwell saw Mr Jeremy Thomas complaining of lower back pain and pain into the left side of his rib cage. Mr Thomas recorded: “Tenderness to palpation Decreased ROM/Movement: Disc L5/S1 R IL strain”. On 12 September 2022, Mr Kedwell saw Mr David Ng, who noted a history of “Trouble putting pants on, wearing shoes, in and out of car”, and observed “pain and decreased range of movement at the L4/5 level and the thoracolumbar junction”: see PJ[14]. Mr Kedwell saw Mr Ng again on Friday, 16 September 2022. On that occasion, Mr Ng recorded “better but still sore. Able to get in and out of the car” and observed that Mr Kedwell suffered pain and decreased range of movement at the L5 level on the right side and at various levels of the thoracic spine.
Mr Kedwell did not attend work on Monday, 19 September 2022. An attendance analysis report records that he took annual leave. On that day he saw Mr Ng, who made the following note of the consultation:
Subjective: Back pain worse over weekend, Getting blood tested, liver kidney?
Objective: Pain and Decreased ROM: left C3 L3 T5 right S2
Treatment: L3 disc.
L C3 Cervical spine bilateral index contact++
R S2 drop.
T5 Seated wing-lift++
On the morning of 20 September 2022, Mr Kedwell saw Dr Ehsan Mozafari of Family Circle Medical Practice in Hamilton, Newcastle. Dr Mozafari issued a medical certificate stating that the applicant “has a medical condition and will be unfit for work from 19/09/2022 to 19/09/2022 inclusive”. Dr Mozafari also referred Mr Kedwell for an MRI scan of his lumbar spine. The referral stated, “chronic back pain”.
Mr Kedwell’s shift on 20 September 2022 commenced at 2:00pm. His evidence was that he went to the bath house at Clarence Colliery’s premises at around 1:40pm to change into his work clothes. He took his shirt off and turned to the right to hang it on a basket containing his clean clothes. He said he felt a “thud” in his lower back and dropped to his knees. He went on to complete his shift.
Mr Kedwell’s evidence was that he reported the incident to his “deputy”, Mr Wayne Perry, and to his other workmates during that shift. However, it was not until 24 March 2023 that he submitted a claim for workers compensation. His claim form indicated that the injury occurred on 20 September 2022 at 1.30pm, and described it as follows:
Weeks prior had been heavy lifting. was sore in lower back, had been to G.P. had MRI organised prior to injury happening, Getting changed out of clothes in bathhouse. Felt snap in lower back.
Mr Kedwell did not return to work the next day, 21 September 2022. He saw Mr Thomas at LSC, who recorded “right leg shooting pain” and recommended Mr Kedwell perform “light duties” with “no bending or lifting”.
Mr Kedwell saw Mr Thomas again on 23 September 2022 in relation to right sided sciatic pain. On the same day he underwent an MRI scan of his lumbar spine. The report identified L4/5 and L5/S1 disc disease, which was “worse at L5/S1 on the right side where there is associated annular fissure and nerve impingement”.
On the morning of 26 September 2022, Mr Kedwell saw Mr Ng at LSC who recorded that Mr Kedwell’s “[l]ower back pain has eased”. Later that day Mr Kedwell saw Dr Sasitharan, who recorded:
pt needs MRI. pt working underground … put clothes in basket
then pt got shooting pain both leg 20/09/22 tuesday afternoon.
Section 4 of the Workers Compensation Act, 1987 (as applicable to coal miners, being how it stood prior to 26 November 2001) provides:
4. Definition of Injury
“injury”
(a) means personal injury arising out of or in the course of employment,
(b) includes a
“disease injury”
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers*’* Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
injury
…
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…
26 Coal miners
(1) The amendments made by [the 2012 Amending Act] do not apply to or in respect of an injury received by a coal miner (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.
(2) In this clause:
coal miner means a worker employed in or about a mine.
4 Definition of “injury” (cf former s 6 (1))
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
The same point was made by Russell SC DCJ in Keogh v CPB Contractors Pty Ltd (No 2) [2024] NSWDDT 9 at [516]-[519] and [537]-[542].
1. Particulars of Injury
a) Date of injury (if over a period of time, state the period as accurately as possible):
i. 20 September 2022
b) Place where the injury happened:
i. Defendant’s premises.
c) What work was being done at the time of injury?
i. Coal mining work.
d) How did the injury occur (for review applications, state the grounds on which the increase is sought):
i. Over the course of [Mr Kedwell’s] employment, he developed intermittent back pain due to repetitive heavy lifting in the course of his employment.
On 20 September 2022, [Mr Kedwell] was in the bath house at the Defendant’s premises where it was customary for employees to change from their everyday clothes into their work clothes. As [Mr Kedwell] was getting changed, he stood up from a bent position and felt sudden back pain with radiating pain down his right leg.
e) Nature of injury:
i. Lower back
f) Incapacity for work:
ii. [Mr Kedwell] is fit to return to full time duties as a fitter so long as the duties are not below ground.
On review on the 26th of October I took a more detailed history regarding this [that is, Mr Kedwell’s “right sided sciatica and subsequent weakness of dorsi flexion of the right foot”]. Mr Kedwell told me that prior to the incident on the 20th of September last year he had for several weeks been doing heavy work lifting parts of machinery underground. He had had some mild lower back pain after doing this and he had seen his general practitioner who had referred him for an MRI .
On the 20th of September [Mr Kedwell] told me that he was at work and was in the bathhouse at the colliery getting changed into some work clothes. As he bent to do this he developed sharp lower back pain. He then had the gradual onset of right leg pain and right leg weakness.
[Mr Kedwell] told me that he reported this incident on the day it happened and tried to make a formal claim three days later but his supervisor would not record it. A workers compensation claim was then lodged by your firm [Mr Kedwell’s solicitors] in January of this year.
I think the employment was the main contributing factor to the injury. I do not think that the incident in the bathhouse was really the significant incident. I think the heavy lifting for the weeks prior has led to some weakening of the annulus of the disc and bending to get changed was the ‘straw that broke the camel’s back’. To state it in another way, I doubt Mr Kedwell would have developed sciatica and weakness in his foot had he not been lifting for the several weeks prior to the incident in September last year.
Whilst the incident in the bathhouse may have been the trigger I think the significant factor was the lifting prior.
And later:
I think the surgery was a direct result of the injury on the 20th of September and the work duties for the several weeks prior and I base that opinion on the history. There appears to have been a sentinel event and the most likely explanation for that is the disc prolapse which was caused by what would seem to be a reasonably minor incident, that is bending to change. That then led to the development of sciatica and objective weakness in the foot.
On 20 September 2022 when he was working for Centennial Coal Mine, he had back pain from the repetitive lifting he was doing underground, and he was proceeding to treat this with chiropractic treatment. Unfortunately, however, in the midst of this flare-up on 20 September 2022, he was in a bathhouse getting changed for work when he stood up from a bent position and he felt sudden back pain with radiating pain down his right leg. It was very severe pain, and it was associated with some weakness in his right foot.
As described above, he has had a pre-existing history of L5/S1 degenerative changes and back pain related to his work. He did, however, have an acute onset on 20 September 2022 of a disc prolapse through an annular fissure in the L5/S1 region and right L5 radiculopathy. This was partially resolved with subsequent surgical decompression.
In response to a question concerning whether Mr Kedwell’s condition was “caused and/or materially aggravated by the general nature and conditions of [Mr Kedwell’s] employment … (rather than a frank injury)”, Dr Herald said:
As stated, the degeneration of the L5/S1 disc most likely occurred as a result of the nature and conditions of his employment but his main problem was a frank injury resulting in the L5/S1 disc prolapse and right-sided L5 radiculopathy.
The day allegedly of relevance to this matter occurred on 20 September 2022. He gave a very clear history of increasing levels of discomfort building up to that time and told me that he had been seeing his chiropractor on a weekly basis during that time. As you know, he and the chiropractor are well acquainted and he told me that as the weeks had passed, he had increasing levels of lower back pain but no leg pain. He went to work on the day in question and when he did go to work, he had driven himself up from his residence in the Newcastle area down to the coal mine at Centennial. He got out of the car, went down to the bathhouse and was simply taking off his shirt to prepare himself for work when he felt a jolt of pain in his lower back with discomfort extending into the right leg. The pain was severe and he told me that he dropped to his knees. In any event, he continued to work and managed to complete the shift …
This gentleman has clear evidence of longstanding lower back pain. There is clear evidence of previous issues with the L5-S1 disc and the MRI scan taken in 2019. There is no evidence that this gentleman injured himself in the workplace. He simply had increasing levels of pain for weeks prior to the episode described above and this culminated in an acute disc prolapse, which occurred as described in this report. The history is straightforward and genuine but it is not caused by the workplace. I note that both Dr Spittaler and Dr Herald believe that there has been “an injury” but I see no evidence to support this. Both doctors should be well aware that the medical literature does not support the concept of nature and conditions of employment being a contributor to issues such as this. This gentleman simply has degenerative lumbosacral disc disease and has been well managed by Dr Spittaler following an episode of acute disc prolapse. (Emphasis in original)
“On and off over years” he had experienced soreness in the back for which he had received chiropractic treatment. He estimated that chiropractic treatment probably dated back about five years. He could not recall an injury to his low back at or away from work at any stage.
In the weeks prior to the acute episode, he had been working underground, including lifting. He had experienced “a bit sore” in his low back.
On a Tuesday morning (he could not recall the month but thought that it was in 2023), he arrived at work, removed his shirt in order to get changed, and then felt a “thud” in the lower back radiating into both groins. Although the pain was substantial, worse than his usual back pain, he expected it would settle. He performed his normal work duties that day. Later that day, the pain radiated into the right lower limb. That night he was unable to sleep because of pain such that he did not attempt to work on the Wednesday and instead drove home. It was [a] struggle for him to get in and out of the car. His right lower limb pain was such that he slept on the lounge at home. He let his workplace know of the symptom.
Disc protrusion is a normal part of the natural history of disc degeneration. The degeneration of his discs has occurred predominantly as a constitutional process. His rugby league and work activities may have provided a small contribution. His activities in the washroom while getting changed were not significant. Had he been doing normal home activities, it is likely the acute episode would have occurred on that date or very close to that date.
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The diagnosis is widespread degenerative disc disease affecting the lumbar and cervical spine which led to acute right L5 radiculopathy which has almost completely resolved leaving just detectable weakness of right great toe dorsiflexion. It is probable that the acute radiculopathy would have occurred regardless of his work in the coal mines and regardless of the actions he performed while getting changed. That statement is based on the epidemiology of degenerative lumbar disc disease, the large relative importance of inheritance and age, the small effect from strenuous physical activity including heavy lifting and twisting activities at work, and the lack of any specific physical insult in his case. Regarding the small (not clinically significant in his case) contribution from his mining duties, attribution would need to be spread over his entire career. [footnote omitted]
[53] A vertebral disc can be thought of as being an oval golf ball. It comprises two elements, the annulus fibrosus and the nucleus pulposus. The annulus is a hard outer lining. The nucleus pulposus is soft material. The rupturing of a disc generally occurs when there is a tearing of the annulus fibrosus, allowing the nucleus pulposus to escape through the tear in the annulus to impinge upon the spinal cord and/or nerve roots. It was the impinging nucleus pulposus that was removed by Dr Spittaler in the operation that he performed on 14 December 2022.
[54] The question is when did the annulus tear? When one carefully reads both Dr Spittaler’s and Dr Herald’s reports, the annulus tore when [Mr Kedwell] stood up from bending over when he was changing his clothes. The problem here is that [Mr Kedwell] admitted in his evidence that he was not bent over when he noticed the onset of pain in his leg. Indeed, he indicated that he was standing up, he had taken off his shirt and he was moving his arms to his right side at an angle of 90 degrees to his torso to put them in the basket, which was on the chain which had been pulled down to take his clean clothes. It would then be taken back up at a higher level of the bath house to protect it.
[55] The usual method of tearing the annulus fibrosus is because of two things, axial overload and torsional stress. The axial overload is putting too much weight on the spine. That of course can occur merely by bending over and, in particular, can be caused by picking up heavy weights. The torsional stress is in this case the moving to one side. However, there was no axial overload. [Mr Kedwell] was standing upright.
[56] The problem I have with the opinions expressed by Dr Spittaler and Dr Herald is they do not have an accurate history. In the claim for compensation submitted by [Mr Kedwell’s] lawyers, as pointed out by Dr Spittaler, [Mr Kedwell] said that his injury was witnessed by Mr Wayne Perry, who was his Deputy. However, [Mr Kedwell] denied that that was the case when he was cross-examined. He also said that he mentioned it to a number of other people, but that appears to be after the event. In his claim for compensation, he said that he reported it to Mr Liam Beecroft, although [Mr Kedwell] misspelt both those names, both the first name and the surname.
…
[63] I cannot accept that [Mr Kedwell] tore the annulus fibrosus of the lumbosacral disc in the bath house on 20 September 2022. The mechanism of injury is implausible. I accept that at some stage the lumbosacral disc ruptured in the sense that there was a tear of the annulus fibrosus leading to the extrusion of the nucleus pulposus of the disc, causing the disc prolapse. When that occurred, I do not know.
The primary judge thought that there were other reasons for doubting Mr Kedwell’s evidence concerning when the injury occurred. One was that he gave inconsistent evidence about whether Mr Perry had witnessed the injury. Another was that he had seen Dr Mozafari on the morning of the day he says he was injured and had complained that his back pain had gotten worse.
Later, under the heading “Nature and Conditions of Employment” the primary judge said:
[68] I wholly accept that heavy and arduous work such as that performed by many in the coal mining industry can aggravate, exacerbate or cause a deterioration of a degenerative condition in the back. However, that does not mean that a disc will rupture. For a disc to rupture requires some form of trauma. I am not persuaded that the trauma alleged on 20 September 2022 occurred. That is, I am not persuaded the injury alleged in the statement of claim on 20 September 2022 occurred.
[69] As far as the other allegation is concerned, the type of work [Mr Kedwell] did for the defendant prior to the rupturing of the lumbosacral disc may have made the degenerative condition worse, but did not cause the tearing of the annulus fibrosus of the disc. The need for the surgery performed by Dr Spittaler was caused by the rupturing of the disc, and the times that [Mr Kedwell] had off work in respect of which he claims compensation were because of the rupturing of the disc.
- The Trial Judge erred in law in failing to determine the matter upon the basis of the pleaded case.
- The Trial Judge failed to consider a substantial, clearly articulated argument relying on established facts.
…
- The Trial Judge failed to apply the correct test of injury.
- The Trial Judge failed to determine whether the Appellant was injured in the manner alleged in the Statement of Claim.
- The Trial Judge’s finding that the mechanism of the Appellant’s injury was implausible was made in the absence of evidence.
- The Trial Judge’s finding that the mechanism of the Appellant’s injury was implausible was made in circumstances which constitute a denial of procedural fairness.
In substance, these grounds of appeal raise two points. The first is that the Primary Judge did not deal with Mr Kedwell’s pleaded case that “Over the course of [his] employment, he developed intermittent back pain due to repetitive heavy lifting in the course of his employment”. The second is that the primary judge rejected Mr Kedwell’s claim that he suffered an injury on 20September 2022 for reasons which were not the subject of evidence, were based on his Honour’s own medical knowledge and were not raised with the parties during the hearing.
Mr Kedwell is entitled to succeed on both points.
Contrary to the submissions made by Clarence Colliery on appeal, on any fair reading of the amended statement of claim, it identifies two injuries. The first is the one identified by Mr Kedwell as the one not dealt with by the primary judge. The question raised by that limb of Mr Kedwell’s claim was whether Mr Kedwell’s ongoing back problems leading to his surgery could be described as “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration” so as to fall within the definition of “injury” in the relevant version of the WC Act. The passage from the report of Dr Spittaler quoted at para [31] above clearly supports Mr Kedwell’s contention that it did.
It is true that Dr Herald, the other expert witness relied on by Mr Kedwell, expressed the view that Mr Kedwell’s “main problem was a frank injury resulting in the L5/S1 disc prolapse and right-sided L5 radiculopathy”. But even he expressed the opinion that “the degeneration of the L5/S1 disc most likely occurred as a result of the nature and conditions of his employment”, which was sufficient to meet the requirements of an injury for the purposes of the WC Act.
The case that Mr Kedwell’s injury consisted of an aggravation etc of a disease where his employment was a contributing factor to the aggravation etc was clearly put to the primary judge in closing oral submissions by Ms Welsh, who appeared for Mr Kedwell. During closing submissions, Ms Welsh said:
In terms of the contemporaneous material, there is evidence in the form of the shift reports, which were identified by [Mr Kedwell] and were marked exhibit A, there is the document which is marked exhibit 10, which shows the dates upon which [Mr Kedwell] worked in the period prior to the accident, and then there are the documents which comprise exhibit L, which are the notes of LSC. When your Honour comes to put those pieces of evidence together, you will see that what in fact was occurring is that [Mr Kedwell] was exhibiting some significant signs of back problems in the weeks prior to this event in the bathhouse, which are consistent with him suffering an evolving back injury, which is described by Dr Spittaler as involving a gradual insult to the annulus fibrosis at the L5-S1 level, which led to symptoms, but did not turn into the very serious disc rupture that [Mr Kedwell] describes until he was changing in the bathhouse on 20 September 2022.
The primary judge appears to accept that submission at PJ[68]-[69] quoted at para [41] above. However, his Honour failed to deal with the question whether that was sufficient to establish that Mr Kedwell had suffered an injury for the purposes of the WC Act. That was plainly an error in point of law.
As to the second point, the primary judge concluded that, contrary to Mr Kedwell’s evidence, it was unlikely that he injured himself while changing on 20 September 2022 because the type of injury he sustained was unlikely to be caused by the movements Mr Kedwell said he engaged in.
It is not easy to follow the primary judge’s reasoning in this respect. He says, presumably based on his own medical knowledge, that “The usual method of tearing the annulus fibrosus is because of two things, axial overload and torsional stress”. He concludes that the cause of Mr Kedwell’s injury could not have been axial overload because Mr Kedwell accepted in cross-examination that he was not bending over when the injury occurred. However, the primary judge does not explain why the injury could not, on his analysis, have been caused by torsional overload when he appears to have accepted Mr Kedwell’s evidence that he was undressing at the time and twisted to the right to hang his shirt on his clothes basket. More significantly, the primary judge’s conclusions were arrived at through his own analysis. They were not based on any expert evidence and were not reflective of any submission made to him. If that was the basis on which he was going to reject Mr Kedwell’s case that he suffered an injury at work on 20 September 2022, it was necessary for the primary judge to give Mr Kedwell an opportunity to answer that case. The primary judge failed to do so. That, also, was an error in point of law.
In view of the nature of these two errors in point of law, it is unnecessary to address Clarence Colliery’s reliance on Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, which relates to review of fact-finding.
It follows from what has been said that the appeal must be allowed and the orders made by the primary judge set aside.
Mr Kedwell sought an award in his favour or alternatively an order that the proceedings be remitted to the District Court for determination.
It is not possible for this Court to make an award in Mr Kedwell’s favour. The outcome of Mr Kedwell’s claim depends on consideration of the question whether Mr Kedwell’s L5/S1 disc prolapse and right-sided L5 radiculopathy was “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration” or whether it was an injury that occurred at work on 20 September 2022. Although the answer to the first question turned largely on the relevant medical evidence, and none of the medical experts was cross-examined on that question (or any other), the answer to the second question turned on whether the evidence given by Mr Kedwell, who was cross-examined and whose evidence the primary judge did not accept for several reasons, should be accepted. This Court cannot determine that question. Nor can it make an assessment of the compensation to which Mr Kedwell should be entitled if he succeeds on the question of liability.
Mr Kedwell has been successful on appeal. There is no reason why costs should not follow the event. On the other hand, it seems appropriate that the costs of the hearing before Neilson DCJ be costs in the cause.
Accordingly, the orders I propose are:
Appeal allowed;
Set aside the orders made by the District Court on 5 September 2025;
Remit the matter to the District Court in its compensation jurisdiction for determination by that court in accordance with the decision of this Court;
The costs of the hearing before Neilson DCJ be costs in the cause;
The respondent to pay the appellant’s costs of the appeal.
GRIFFITHS AJA: I agree with Ball JA.
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Typographical error in [48] - Mr Welsh to Ms Welsh.
Kedwell
Clarence Colliery Pty Limited
Appeal allowed; the District Court orders made on 5 September 2025 were set aside; the matter was remitted to the District Court in its compensation jurisdiction for determination in accordance with the Court of Appeal’s decision. The costs of the hearing before Neilson DCJ were made costs in the cause, and Clarence Colliery was ordered to pay Kedwell’s appeal costs ([57]).