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

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

The plaintiff had an incapacity on the open labour market after retrenchment by the first defendant because his long-standing degenerative neck, back and joint conditions, aggravated by coal mining work, restricted his ability to obtain comparable labouring or coal mining work. His actual lower earnings with the second defendant were accepted as the measure of earning capacity under Aitkin, producing a compensable weekly loss. However, after resignation from the second defendant, the evidence did not establish an incapacity for work caused by the left knee injury, because he had been managing the security work and likely resigned for industrial reasons. Lump sum compensation was assessed...

Jurisdiction
Australia
Judgment Date
08 April 2021
Procedural Posture
Coal Miners Workers Compensation Claim / Principal Judgment After Hearing
Outcome
Plaintiff succeeded in part against the first defendant and obtained medical expenses for left knee treatment against the second defendant; the plaintiff's weekly payments claim against the second defendant failed; assessment of the right arm lump sum claim was deferred.
Legal Topics
['weekly Payments of Compensation' 'incapacity for Work' 'earning Capacity' 'lump Sum Compensation' 'impairment of Neck and Back' 'loss of Efficient Use of Arms' 'medical Expenses' 'degenerative Pathology']
['workers Compensation' 'coal Miners Workers Compensation'] ['weekly Payments of Compensation' 'incapacity for Work' 'earning Capacity' 'lump Sum Compensation' 'impairment of Neck and Back' 'loss of Efficient Use of Arms' 'medical Expenses' 'degenerative Pathology']

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Procedural Posture

Coal Miners Workers Compensation Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff was incapacitated after retrenchment by the first defendant and entitled to weekly payments reflecting the difference between coal miner earnings and earnings with the second defendant.' 'Whether the plaintiff had any incapacity for work caused by the left knee injury with the second defendant after resigning from that employment.' 'What lump sum compensation should be awarded for impairment of the neck, impairment of the back and loss of efficient use of the left arm at or above the elbow.' 'Whether assessment of loss of efficient use of the right arm at or above the elbow should be made before proposed shoulder surgery.']

Ratio Decidendi

The plaintiff had an incapacity on the open labour market after retrenchment by the first defendant because his long-standing degenerative neck, back and joint conditions, aggravated by coal mining work, restricted his ability to obtain comparable labouring or coal mining work. His actual lower earnings with the second defendant were accepted as the measure of earning capacity under Aitkin, producing a compensable weekly loss. However, after resignation from the second defendant, the evidence did not establish an incapacity for work caused by the left knee injury, because he had been managing the security work and likely resigned for industrial reasons. Lump sum compensation was assessed...

Court Disposition

Plaintiff succeeded in part against the first defendant and obtained medical expenses for left knee treatment against the second defendant; the plaintiff's weekly payments claim against the second defendant failed; assessment of the right arm lump sum claim was deferred.

Orders

  • ["The second defendant is to pay the plaintiff's expenses under s 60 referrable to any ongoing treatment needed for the condition of his left knee." "In respect of the plaintiff's claim for weekly payments against the second defendant, an award is made for the second defendant." "The remaining parties are directed...