Craig Anthony Kedwell v Clarence Colliery Pty Limited

2025/00379201

WORKERS COMPENSATION – the appellant alleged that he developed intermittent back pain due to repetitive heavy lifting in the course of his employment with the respondent, and on 20 September 2022 he was getting changed in the bathhouse at the respondent’s premises when he stood up from a bent position and felt sudden back pain with radiating pain down his right leg – the appellant claimed certain weekly payments for absences from work between 21 September 2022 and 30 January 2023, treatment expenses under s 60 of the Workers Compensation Act 1987 (NSW), and lump sum compensation for 20% permanent impairment of his "lumbar spine" under s 66 of the Act – the primary judge found that the appellant had not established that the alleged injury occurred on 20 September 2022 – as to the claim for weekly payments and s 60 expenses, the primary judge made an award for the respondent – the primary judge dismissed the appellant’s claim under s 66, but granted leave for the appellant to make, in subsequent proceedings, a claim under s 66 – whether the primary judge erred in law “in failing to determine the matter on the basis to plead a case” – whether the primary judge erred in failing to consider a substantial, clearly articulated argument relying upon established facts – whether the primary judge failed to give reasons as to why the appellant’s allegation of injury should be confined to what occurred on 20 September 2022 – whether the primary judge erred in failing to draw a Jones v Dunkel inference against the respondent for its failure to call any of its employees – whether the primary judge failed to apply the correct test of injury – whether the primary judge failed to determine whether the appellant was injured in the manner alleged in the statement of claim.

Kedwell v Clarence Colliery Pty Limited [2025] NSWDC 417