Australia, Jan. 17 -- New South Wales Land and Environment Court issued text of the following judgement Dec. 18:

1. Nathan John Brumby has sued Mt Arthur Coal ("Mt Arthur") alleging that an employee of Mt Arthur negligently injured him in an accident on 2 May 2018 at its open cut mine outside Muswellbrook, New South Wales. He has claimed he suffered a serious back injury that has prevented him from working at all since late 2018.

2. A significant issue in the case is whether that is true, and the extent to which the well-documented pre-existing degenerative changes in his back, as well as the prior and subsequent back injuries and aggravations caused by accidents, (particularly on his motorbike), were the - or a - cause of Mr Brumby's claimed need for surgery, inability to work, and ongoing pain and disability.

3. An issue has arisen as to whether Mt Arthur should be allowed to rely on a report obtained by its solicitors from a treating chiropractor in October 2024, and whether Mt Arthur should be allowed to call that chiropractor to give oral evidence.

4. Mr Brumby, via his counsel Mr Dooley SC, objects to that course being taken because the report should not have been obtained from Dr Elliott in the way that it was - i.e., without any consent by or notice to Mr Brumby - it was served too late and was not prepared and served in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), the Civil Procedure Act 2005 (NSW), the Expert Witness Code of Conduct and the case management orders made by the Court. Second, no expert should be permitted to give oral evidence that has not been the subject of a report that has been prepared and served in accordance with the Court's orders and rules.

5. Mt Arthur, via its counsel Mr Morris SC, submitted that material evidence about the true position of Mr Brumby's pre-accident injuries, back pain and treatment should be before the Court, and that includes Dr Elliott's potential oral and report evidence, because he was treating Mr Brumby from 2008 up to two weeks before the accident the subject of these proceedings. He argued that the records Dr Elliott produced on subpoena in September 2024 indicate that there had been over that period many treatments to Mr Brumby's lower back. Mr Morris submitted that the fact that the records produced by Dr Elliott are in a kind of abbreviated code rather than a narrative means that it is not fair to Mt Arthur to not have the clarity to explore with Mr Brumby what parts of his body were treated by Dr Elliot and why, and so the Court is being denied relevant, helpful material that bears on the issues it has to determine.

6. On 6 December 2024, I made orders upholding Mr Brumby's objections to the report of 28 October 2024 and the calling of Dr Elliott by Mt Arthur for the reasons that follow.

Procedural chronology

7. In a statement of claim filed on 10 February 2021 in the District Court at Gosford, Mr Brumby alleged that on 2 May 2018, whilst in the process of waiting for his dump truck to be filled by an excavator shovel being operated by an employee of Mt Arthur, the rear of his truck was struck violently either by a very large rock or the excavator shovel, causing injury to Mr Brumby. The injuries were particularised in the statement of claim as including soft tissue injury to the back, including injury to L4/5 and L5/S1 levels, and a disc protrusion.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d2ceaab7eb2408dc6d9fe)

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