Civil Trials Bench Book — Particular proceedings

When the Compensation Court of NSW was abolished on 1 January 2004, the District Court was vested with its remaining jurisdiction. This jurisdiction is divided into two lists, the Coal Miners’ Workers Compensation List (“the Mining List”) and the Special Statutory Compensation List: see [5-1000] and ff. The governing provisions are District Court Act 1973, Pt 3 Div 8A (ss 142E–142P) and UCPR Sch 9 (Assignment of Business in the District Court) and Sch 11 (Provisions regarding procedure in certain lists in the District Court).

The Mining List existed for many decades before 1 January 2004, in the Compensation Court. The Mining List hears and determines all claims for workers compensation for those injured, or allegedly injured, “in or about a [coal] mine”. Originally, northern mining claims were heard in Newcastle, Western Mining claims were heard in Lithgow or Katoomba, and southern mining claims were heard in Wollongong. Currently, northern and part of the western mining claims are heard in Newcastle and the other part of the western mining and the southern mining claims are heard in Sydney. The Court currently sits for 12 weeks each year in Newcastle (roughly one week each month) and for three weeks each year in Sydney. Arrangements are often made for a judge to hear a redemption application at other times in Sydney.

Proceedings are usually commenced by statement of claim (UCPR, Sch 11 Pt 2 cl 3), but certain types of proceedings are commenced by summons (Sch 11 Pt 2 cl 7). The initiating process can be filed in the Registry in either Newcastle or Sydney. The initiating process is required to bear the heading “Coal Miners’ Workers Compensation List” (UCPR, Sch 11 Pt 2 cl 4). In order to comply with certain statutory restrictions on the commencement of proceedings under the Workers Compensation Legislation, an initiating process may need to have filed with it a certificate of compliance (Sch 11, Pt 2 cl 6).

Schedule 11 Pt 2 Div 2 of the UCPR provides for conciliation of coal miners’ claims, the conciliator being an officer or employee of the District Court nominated by the Registrar to carry out such conciliation. All such claims are referred for conciliation no later than three months after the claim is filed: Sch 11 Pt 2 cl 25.

Conciliation conferences are held in Katoomba/Lithgow, Newcastle, Sydney and Wollongong/ Port Kembla during the year.

The primary purpose of the conciliation conference is to explore the possibility of settlement. However, even if settlement is unlikely, the conference provides an opportunity to seek concessions, narrow the issues and make application for directions to enhance readiness for hearing.

Matters are listed before the Registrar approximately three months after filing, to assess readiness for conciliation. Matters are listed for conciliation by the conciliator in four lists: Wollongong, Western Mining, Newcastle, and Sydney.

Once a matter is ready for conciliation it joins the conciliation pending list and matters are listed in order of date of filing and date of readiness. At the moment, most of the solicitors on the Coal Mines Insurance panel have Sydney based offices. Matters are grouped where possible so that practitioners are not travelling for single matters.

The substantive law is often difficult to ascertain. Those entitled to make a claim for “coal miner benefits” have kept many rights that other workers have lost. For example, such claimants have kept the following rights:

To find the applicable law it is sometimes necessary to have recourse to repealed Acts and repealed Regulations. A necessary starting point is the Workers Compensation Act 1987 (“the 1987 Act”) Sch 6 Pt 18 and subsequent transitional provisions as amendments were made to the 1987 Act. Counsel will often be able to identify the relevant provision(s).

A plaintiff is required to prove that he was a “worker employed in or about a mine”, the terminology used in Sch 6 Pt 18 of the 1987 Act. Section 3(1) of that Act defines the word “mine”:

A plaintiff does not need to be employed as a coal miner by a colliery company. A person who is injured whilst working “in or about a mine” is entitled to coal miner benefits. The relevant case law is: Roberts v Fuchs Lubricants (A’asia) Pty Ltd (2002) 24 NSWCCR 135; Pilgrim v Ellevate Engineering Pty Ltd (2003) 25 NSWCCR 521; Ellevate Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744; Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177; Select Civil (Kiama) Pty Ltd v Kearney [2012] NSWCA 320; Baggs v Waratah Engineering Pty Ltd [2014] HCA Trans 108; Butt v Liebherr Aust Pty Ltd [2015] NSWDC 3.

The earlier authorities have been collected and discussed in Butt v Liebherr Aust Pty Ltd, above.

A plaintiff must have received an “injury” as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1988 Act”), not as defined in s 4 of the 1987 Act. A plaintiff does not have to prove that his employment was either a substantial contributing factor to his injury or disease or the main contributing factor to his injury or disease, nor do the “heart attack or stroke” provisions (s 9B, 1987 Act) apply to such plaintiffs: Sch 6.

Total incapacity is compensated under s 9 of Workers Compensation Act 1926 (“1926 Act”). During the first 26 weeks of incapacity the plaintiff is entitled to the Current Weekly Wage Rate (“CWWR”), being the award rate for a standard week (usually 38 hrs) without any shift or other loadings. After the first 26 weeks, the plaintiff is compensated at the statutory rates under the 1926 Act which are still indexed and may be found in Mills Workers Compensation NSW, Benefits Guide. As at 1 April 2023 that rate was $469.50, plus $107.30 for a dependent spouse, plus $63.90 for each dependent child, but the total of such sums cannot exceed the CWWR.

Partial incapacity is compensated under s 11(1) of the 1926 Act. The compensation cannot exceed the maximum payable for total incapacity.

This is governed by s 11(2) of the 1926 Act. An employer is required to provide his injured employee with suitable employment during his partial incapacity. A failure to do so results in the payment of compensation at the rate prescribed for total incapacity. In practice, a partially incapacitated worker draws his employer’s attention to his partial incapacity by requesting suitable employment, or “light duties”. A failure to provide such duties renders the employer liable to pay compensation as if the worker were totally incapacitated. The worker, however, must be “ready, willing and able” to perform the selected duties, which are usually certified by his treating doctor or rehabilitation provider.

If injury was sustained before 30 June 1985, s 52(4) does not apply. If an award of weekly payments of compensation is made in respect of incapacity due to injury, both before and after 30 June 1985, this provision comes into operation: Rizk v Royal North Shore Hospital (1994) 10 NSWCCR 427.

These are governed by s 60 of the 1987 Act. Usually only a general order is sought (“that the defendant pay the plaintiff’s expenses under s 60”). Sometimes there is a dispute as to whether expenses actually incurred by a plaintiff are compensable. The statutory test is whether incurring such expenses was “reasonably necessary as a result of an injury”: s 60(1), not “reasonable and necessary”. On occasions a plaintiff may seek a declaration that proposed medical treatment (eg.. total hip or knee replacement surgery) is reasonably necessary as a result of injury. As to the power of the Court to make such a declaration, see Perrin v SAS Trustee Corporation [2014] NSWDC 203 at [24]–[30]. Ultimately, the Court made a conditional finding: Perrin v SAS Trustee Corporation (No. 2) [2015] NSWDC 345, which was the subject of a successful appeal, but the Court’s power to make such a declaration or finding was not challenged: State Super SAS Trustee Corporation Ltd v Perrin [2016] NSWCA 232.

If a loss occurs solely as a result of an injury occurring before 30 June 1987, lump sum compensation is governed by s 16 of the 1926 Act. Otherwise, ss 66 and 67 of the 1987 Act apply, unaffected by the Workers Compensation Amending Acts of 2001. Section 66 is the “Table of Maims” and s 67 provides for the payment of a lump sum for “actual pain, or anxiety or distress” resulting from any lump sums payable which exceed the statutory threshold of 10%. The quantum of the maximum payable was frozen from further indexation on 1 October 1995. The maximum amount payable for individual losses or impairment was fixed at that time at $132,300. The maximum amount payable for multiple losses or impairments was fixed at $160,950. The maximum amount payable under s 67 was fixed at $66,150.

An example may assist. A plaintiff stops working with a back complaint after 1 October 1995. The plaintiff claims a lump sum for permanent impairment of his or her back. The maximum payable for impairment of the back is 60% of $132,300, ie. $79,380. If the impairment of the back is 15%, he or she is entitled to 15% of $79,380 ie. $11,907, which is less than 10% of $132,300, so he or she cannot make a claim under s 67. If, however, the impairment of the back is 20%, then he or she is entitled to $15,876 which exceeds to 10% threshold so he or she is entitled to make a claim under s 67. The maximum payable under s 67 is payable only “in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and quantum of pain and suffering and the severity of the loss or losses”: s 67(3).

The effect(s) of any non-compensable injury or condition must be deducted from the lump sum compensation payable under s 66. For example, after many injuries to his right knee in underground mining, a plaintiff has a total knee replacement. This usually leaves a person with about 40% loss of efficient use of the right leg at or above the knee. If, however, before taking up mining, he had a medial meniscal injury as a result of playing football in his teenage years, he may have lost 10% of the efficient use of his right leg at or above the knee. Compensation is payable only for 30% loss. A very common argument is that a loss or impairment results solely from a constitutional, genetic or intrinsic degenerative condition such as osteo-arthritis or degenerative disc disease of the spine. Some medical practitioners will say that the total loss or impairment is not so caused, others will say it is wholly traumatic and others will concede an underlying constitutional condition which has been made worse by the type of work the plaintiff has done over many years. A relevant provision of the 1987 Act which still applies to coal miners is that if evidence is wanting on such an issue or it would be difficult or costly to ascertain what “deductible proportion” there might be, the “deductible proportion” is assumed to be 10% of the loss, ie. a loss of 20% of a thing is reduced to an 18% loss.

A loss of a leg at or above the knee includes the loss of a leg below the knee, and the loss of leg below the knee includes a loss of the foot. Similarly, a loss of an arm at or above the elbow includes the loss of an arm below the elbow, and the loss of an arm below the elbow includes the hand. See Stokes v Brambles Holdings Ltd (1994) 10 NSWCCR 515; Summerson v Alcom Australia Ltd (1994) 10 NSWCCR 571; KB Hutcherson Pty Ltd v Correia (1995) 183 CLR 50.

The sacro-ilic joints and the coccyx are part of the pelvis, not the back: see De Gracia v State of NSW (1993) 13 NSWCCR 73; Clymer v RTA (1996) 13 NSWCCR 187.

Loss of efficient use of sexual organs is often claimed by those with a “bad back”. See: Malcolm v RTA (1995) 12 NSWCCR 258; RTA v Malcolm (1996) 13 NSWCCR 272 (re penis); Waugh v Newcastle Mater Madericordiae Hospital (1996) 13 NSWCCR 598 (female sexual organs).

Redemptions under s 15 of the 1926 Act were not continued under the 1987 Act which replaced them with “commutations” under s 51 of that Act, but that provision was repealed by Act No 61 of 2001 commencing 1 January 2002, which replaced it with a more limited right to commutation under Pt 3 Div 9 of the 1987 Act. However, coal miners kept their right to have their settlements (“redemptions” under s 15 of the 1926 Act) approved by the Court.

All redemption applications under s 15 of the former Act are made by the employer following agreement having been reached with the worker as to a redemption sum.

This constitutes a full and final settlement of the worker’s rights to compensation in respect of the particular injuries/incapacities as set out in the statement of claim filed, or may be the result of separate negotiation between the parties without any statement of claim having previously been filed. The redemption application includes any right or further right to lump sum payments for loss of any limb or function: s 66. For an example of the effect of a redemption on a latent injury, see Mount Thorley Operations Pty Ltd v Farrugia [2020] NSWDC 798.

It is necessary for the worker to give evidence, in appropriate circumstances by affidavit, in respect of any injuries and ongoing incapacity which are included in the redemption application and in respect of any payments of compensation which have been made, including evidence in respect of medical expenses paid or unpaid.

It is the responsibility of the judge to determine if the sum offered in redemption is adequate following consideration of matters such as:

It is necessary for the worker to advise the court of consent to the redemption and a signed consent form is handed to the judge for inclusion on the file along with the tender of Short Minutes setting out the payment details in respect of the redemption.

Often the redemption amount will be part of a common law settlement and the parties will advise the judge accordingly.

It is always within the discretion of the judge hearing the application to determine if the amount is adequate and in the best interests of the worker. If the judge decides the amount is not adequate, then generally the application will be rejected.

Any redemption takes effect from the date of the application being approved. It is prudent to check that the worker is aware of any deductions by way of Health Insurance Commission payments which can be deducted from any sum redeemed or of any Centrelink benefits outstanding which will also be deducted as these sums obviously have a bearing on whether the amount approved is an adequate one. As well, the worker should be aware of any preclusion period to be served prior to an ability to access Centrelink benefits in the future.

If a worker is in receipt of voluntary payments or is subject to an award of compensation of the court it is relevant to note that those payments cease on the day of the approval of the redemption. Medical expenses should be paid up to that date. It is not appropriate there should be any deduction from the redemption sum to pay any outstanding medical/treatment expenses.

See Sch 6 Pt 4 cl 6 of the 1987 Act.

The usual order is that the employer bears the costs of the application even if the worker withdraws his consent on the day of or prior to the application being heard by the judge, or if the judge refuses to approve the application. Costs orders are not made against a worker unless the court is satisfied an application was frivolous, vexatious or without proper justification, and of course the application in redemptions is made by the employer: Workplace Injury Management and Workers Compensation Act 1998, s 112.

Costs are governed by s 112 of the Workplace Injury Management Workers Compensation Act 1998.

Legislation

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Further references