Liddell Coal Operations Pty Limited v Hector - [2021] NSWCA 47 - NSWCA 2021 case summary — Zoe

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Liddell Coal Operations Pty Limited v Hector

[2021] NSWCA 47

Court of Appeal (NSW)|2021-03-16|Before: Basten JA, Gleeson JA, McCallum JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2021-03-16

Before

Basten JA, Gleeson JA, McCallum JA

Catchwords

(2003) 77 ALJR 1088 Goodwin v Commissioner of Police [2010] NSWCA 239 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390

Source

Original judgment source is linked above.

Catchwords

(2003) 77 ALJR 1088 Goodwin v Commissioner of Police [2010] NSWCA 239 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390

Judgment (10 paragraphs)

[1]

Background

Mr Hector was first employed in the coal mining industry by Thiess Pty Limited (Thiess) at the Mount Owen Mine near Ravensworth in the upper Hunter Valley from 21 June 2004 to 23 October 2009, initially as a CHPP technician up until July 2006, and thereafter as a CHPP supervisor. Prior to commencing with Thiess, Mr Hector underwent a full medical and functional assessment. Between October 2009 and early October 2010, he was employed by Pacific National. The judge found that the work at Pacific National was managerial in nature, essentially done from a desk: at [18].
Mr Hector was employed at the Liddell CHPP near Ravensworth by Liddell Coal Preparation Plant Pty Limited (LCPP) from 5 October 2010 to 1 December 2011, and then by the appellant, from 1 December 2011 to 15 September 2017. He worked as an electrical technician up until 17 November 2011 and thereafter as an electrical shift supervisor until his services were terminated on 15 September 2017. He has not worked since that date.
The judge accepted Mr Hector's evidence that his work at the Liddell CHPP was similar to the work at the Mount Owen CHPP: at [19]. As a technician, Mr Hector's work involved wearing a heavy belt on which he carried tools, and also required him to carry a toolbox on a sling over his shoulders that weighed some 25 kgs. The layout of the CHPP at Liddell was similar to the CHPP at Mount Owen; there was the usual configuration of stairs, walkways and ladders over six levels. As a technician, Mr Hector was frequently moving from level to level and along levels, walking up stairs made essentially of metal chequered plates and along walkways of a similar nature. He was required to walk along the conveyers which averaged about 200 metres in length to attend to any breakdown or to inspect them. Often there were spillages of coal on the conveyers and the spillages needed to be cleaned away, either with shovels or by the use of hoses. On each shift, Mr Hector would climb between six and eight times up to the control room and on three to four occasions each shift he would climb to the top of the structure up all six floors. In addition, there were often materials to be carried to a site where repair work needed to be done, such as drums of oil which weighed about 20 kgs.

[2]

The right knee

Mr Hector had previously undergone an arthroscopic procedure upon his right knee at the Royal Darwin Hospital on 11 May 1998, following a diagnosis by Dr Steve Baddeley of patellofemoral arthritis. He said that he had no issues following that procedure. The judge accepted that evidence and found that no problems were noted with Mr Hector's right knee after June 1998, and that there was no damage to the medial meniscus at that time: at [28].
Mr Hector next noticed problems with his right knee in late 2010 whilst working at the Liddell CHPP. He gave evidence that after walking up and down stairs, and being on his feet carrying heavy objects, he was "a little bit sore at the end of the day, and that gradually got - and, that did subside overnight and I was fine the next day. It got to the point where the pain was continuing into the next day, and that's when I decided to go and have it looked at."
On 11 July 2011, Mr Hector consulted his general practitioner, Dr Samy, concerning a history of knee pain of approximately 12 months, and that "3 weeks ago [he] had a big day at work which made it wirse (sic)." The judge found that the history of pain of 12 months was, more likely, a reference to a period of 9 months as Mr Hector's evidence was that the problems with his knee occurred only after he commenced work with LCPP in October 2010, and the symptoms were not present while employed by Thiess.
Mr Hector underwent an arthroscopy performed by Dr Young, an orthopaedic surgeon, on 10 August 2011, who found wearing of the patellofemoral joint and a tear in the body of the medial meniscus. The posterior horn of that structure was excised. Following an MRI scan on 6 February 2012, Dr Young reported on 22 February 2012 that the scan showed further tearing of the medial meniscus and moderate osteoarthritic wear.
In late-August 2015, Mr Hector again saw Dr Samy about his right knee, who organised an X-ray on 8 September 2015. The X-ray report concluded: "Degenerative changes are noted. These being most severe in the medial weight-bearing compartment."
In September 2015, Mr Hector consulted Dr Richard Verheul, an orthopaedic surgeon, who advised against further investigative surgery or joint replacement surgery and recommended that Mr Hector continue anti-inflammatory medication.
On 1 August 2016, a further X-ray of Mr Hector's right knee showed that all three compartments of his right knee were affected by osteoarthritis. This led to Mr Hector undergoing a total right knee replacement performed by Dr Verheul on 17 November 2016. Dr Verheul later performed a resurfacing of Mr Hector's right patella and revision of the right knee replacement on 5 October 2017.
Mr Hector returned to work in early 2017 and was placed on "light" duties, office-based, and on average three days per week. Liddell terminated Mr Hector's employment effective 15 September 2017, on the basis that he could no longer perform the inherent requirements of his role, specifically his limited ability to climb stairs.

[3]

Mr Hector's case

Mr Hector's case in the District Court was that he had received injuries to his neck, right knee, left knee and his shoulders arising out of or in the course of his employment, each being a relevant injury as defined by s 4 of the WC Act, which provides: In this Act - "injury" - (a) means personal injury arising out of or in the course of employment, (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.
Specifically, Mr Hector alleged against the appellant that the nature and conditions of employment, or alternatively, a disease of gradual process, or aggravation of a disease of gradual process arising from the tendencies, incidences and characteristics of his employment, caused him an injury to his neck, right knee, left knee and his shoulders.
Given the scope of the award of compensation by the judge, it is only necessary to refer to the medical evidence relating to Mr Hector's right knee. This consisted of notes and reports of Dr Samy, records of the Royal Darwin Hospital from 1998, reports of Dr Young, X-rays and MRI scans of the right knee, and reports of Dr Verheul. There were also a number of medico-legal reports directed to this issue, amongst others: Dr Alan Hopcroft (general surgeon), Dr Joseph Ghabrial (orthopaedic surgeon), Dr John Harrison (orthopaedic surgeon), and Dr Anthony Schwarzer (rheumatologist), who were called by Mr Hector, and Dr Neil McGill (rheumatologist) and Dr Roger Rowe (orthopaedic surgeon), who were called by the appellant.
The essential medical issue at trial was whether the osteoarthritis in Mr Hector's right knee was related by cause or aggravation to his employment. Dr McGill and Dr Rowe were of the view that it wasn't; Dr McGill considered that Mr Hector suffered from idiopathic osteoarthritis. Dr Hopcroft, Dr Harrison and Dr Schwarzer were of the view that Mr Hector's work and the nature of his duties contributed to the aggravation, acceleration and exacerbation of the osteoarthritis in his right knee. Dr Ghabrial considered that the problems with Mr Hector's knees were a result of his heavy work activities during his employment in the mining industry.

[4]

The District Court decision

After referring to Mr Hector's work history, the nature and conditions of his employment in the coal mining industry since 2004 and the medical treatment of his right knee, the judge addressed the cause of Mr Hector's symptoms that led to him undergoing the arthroscopy in August 2011, finding at [30]-[31]: [30] In a report of 18 August 2011 Dr Young pointed out that the principal finding at arthroscopy was the tear of the medial meniscus which led to its partial excision. The question arises is what was the cause of the plaintiff's symptoms that led to his undergoing the arthroscopy? It seems likely to me, therefore probable, that the symptoms the plaintiff was complaining of since shortly after starting work with the second defendant were mediated by the tearing of the medial meniscus. The question is why did it tear? Did it tear because of frank trauma? Did it tear as part of a degenerative process or was there some other cause for it? The plaintiff relies in particular on a statement contained in the report of Dr Neil McGill, a rheumatologist qualified by the defendant, who examined the plaintiff and reported on 23 August 2018. On p 8 of Dr McGill's report is this statement: … the studies are very clear that trauma, including meniscal damage, is an important causative factor in the development of knee osteoarthritis. If the meniscectomy he had in 2010 was related to a specific injury then I would conclude that the injury was relevant to his subsequent right knee progressive osteoarthritis. I wholly accept that the surgery practised to the plaintiff's medial meniscus by Dr Young on 10 August 2011 would have at least accelerated or exacerbated or caused to deteriorate any osteoarthritis in the plaintiff's left (sic) knee. However, there was no "specific injury", no event of injury either pleaded by the plaintiff in the statement of claim or described by him in his evidence. However, if there was some degenerative process going on the medial meniscus could fray over a period of time and the fraying could lead to complete rupture, which appears radiographically or visually to look like a tear of the meniscus. [31] However, the only way one can definitely know that there was such tearing leading to rupture is symptoms. The plaintiff's symptoms commenced shortly after he started working for the second defendant and there was, it would appear, some acute exacerbation, that is major flare-up of symptoms, some three weeks before the plaintiff saw Dr Samy on 11 July 2011. It is quite possible and, I believe, likely that the plaintiff did injure in some fashion his right medial meniscus sometime after starting work for the second defendant and likely that there was a complete separation of the medial meniscus, the tearing, probably three weeks prior to 11 July 2011. I say that because the plaintiff had no symptoms, prior to working for the second defendant, in his right knee other than way back in 1997 and 1998 in the Northern Territory and antecedent to starting work with the second defendant the plaintiff's work with Pacific National was largely sedentary and the plaintiff's returning to work at a CHPP probably overexerted himself compared to the way he worked with Pacific National.
The judge rejected the possibility raised by Dr McGill that the meniscal damage identified in 2010 (in fact, 2011) was related to "a specific injury", finding that Mr Hector had never reported any injury whilst working for Thiess, nor did he make any claim for compensation or suggested that he had an onset of symptoms whilst working for LCPP leading to the arthroscopy performed on 10 August 2011. At no time did he report an injury to LCPP. He did not make any claim for compensation against his employers prior to the termination of his services with the appellant: at [32].
The judge accepted the evidence of Dr Harrison, finding his answer to a specific question "helpful": at [66]. Dr Harrison's answer to question 14, relevantly, included: On the history he gave me of the slow onset of discomfort and awareness of pain affecting that knee, (notwithstanding earlier arthroscopic intervention on that knee), the nature and conditions of his work does appear to have been a substantial contributing factor to development of symptoms affecting the degenerative changes from 2010 onwards from earlier imaging studies which I saw with minimal joint space narrowing to significant medial joint space narrowing and associated-patellofemoral wear documented in those studies linking attribution to his work in the coalmining industry throughout that time in that way at the wash plant. That has led onto the necessity of the said operative treatment ….
Dr Harrison had obtained the following history from Mr Hector: Job situation:- His work there involved assistance with different parts of the washery and supervision of other workers but there was bulldozer and plant driving work and the rest was fairly heavy work, quite frequently involving shovelling to separate clumps of heavy clay from coal prior to it being put through the washing process that was conducted at that centre. In 2011, he started to get pain affecting his right knee again while at work and in his leisure time, troubling him when he climbed steps or stairs, up or down; when walking up inclined slopes in the washery and whenever he had to squat or kneel to check and enact maintenance tasks. …
Subject to one minor qualification which is not presently relevant, the judge accepted the evidence of Dr Schwarzer, and reproduced at [67] a lengthy passage from his report under the heading "Pathological process" which included: The knee pathology is a result of repetitive twisting, standing and walking on uneven surfaces and repetitive kneeling and squatting. The osteoarthritis can be precipitated or exacerbated by internal disruption of the knee such as what may occur with a meniscal tear. Loss of integrity of the meniscus will lead to a loss of the normal cushioning of the joint surfaces. This lack of cushioning will cause repetitive trauma to the hyaline cartilage lining the joint. This will lead to wear and loss of integrity of the joint surfaces. Placing continued forces on the joint will lead to progressive joint damage with eventual loss of the smooth cartilage surfaces. Loss of function occurs through a loss of the smooth movement of the joint. Pain is a result of stimulation of the nociceptors in the joint capsule, synovium and subchondral bone. … … It is my opinion that Mr Hector's work in the coalmining industry and the nature of the duties which he undertook in the coalmining industry contributed to the aggravation, acceleration and exacerbation of the above disease processes. It is my opinion that Mr Hector's employment, the incidents which occurred during the course of his employment and the very nature of the duties which he undertook in the coalmining industry, i.e. the tendencies, incidences and characteristics of that employment are, on the balance of probabilities, more likely than not a substantial contributing factor to the injury/condition from which he suffers. (Emphasis added.)
Dr Schwarzer had obtained the following history from Mr Hector: … In 2010, Mr Hector took up employment at the Liddell washery in an operations role. This job involved heavy lifting, shoveling (sic), repetitively walking up and down stairs and using bulldozers. After two years there he worked in a supervisory role as a leading hand. His role involved the carrying of oil and parts of operating machines and front end loaders and bobcats. During this time he complained of increasing pain in his right knee. … In 2011 Mr Hector experienced increasing pain in his right knee exacerbated by walking and climbing up and down stairs. He underwent an arthroscopic medial meniscectomy by Dr Johnathan Young with resolution of his pain. His knee pain returned in 2015 when he started to experience pain at the end of the day. The pain became progressively worse and he was unable to sleep at night because of the pain. Medications such as Celebrex were ineffective. …
The judge observed at [68] that the opinion of Dr Schwarzer must be compared with that of Dr McGill, who after referring to certain epidemiological studies which showed no evidence of a causal link between joint loading and the natural progression of knee osteoarthritis, expressed the opinion which the judge reproduced, including: … In contrast to the above negative studies which have looked for an association between repetitive activities and osteoarthritis, the studies are very clear that trauma, including meniscal damage, is an important causative factor for the development of knee osteoarthritis. If the meniscectomy he had in 2010 was related to a specific injury then I would conclude that the injury was relevant to his subsequent right knee progressive osteoarthritis. … Further research has the potential to provide an even more accurate understanding of the factors predisposing to knee osteoarthritis but based on the available data, I think his right knee osteoarthritis occurred because of constitutional predisposition, meniscectomy in 2010 and being overweight. I do not think that the general nature of his work duties provided an influence to the progression. It is likely that from time to time he would have experienced more soreness for a brief period because of physical activity at or away from work. … (Emphasis added.)
Although not referred to by the judge, in response to Dr McGill's conclusion that Mr Hector suffers from idiopathic osteoarthritis, Dr Schwarzer also said: It is clear that Mr Hector suffered an injury to his right knee resulting in a meniscal tear. We know, and this is acknowledged by Dr McGill in his report, that internal derangement of the knee from injuries such as meniscal tears will lead to premature osteoarthritis. This is precisely what occurred to Mr Hector in 2011 which lead to the medial meniscectomy. Workers in the mining industry, by the very nature of their work, are subjected to repeated traumatic episodes that may lead to such injuries. Repetitive twisting of the knees, squatting and walking on uneven surfaces will cause repetitive trauma that will lead to conditions such as meniscal tears. Progression to osteoarthritis is inevitable once there is such internal derangement of then (sic) knee. Furthermore, as mentioned by Dr Hopcroft, the condition from which Mr Hector suffers is asymmetrical and therefore cannot be the result of a constitutional condition of osteoarthritis which is more symmetrical. The arthritis occurred in the traumatized (sic) joint. …. (Emphasis added.)
The dispositive reasons of the judge are set out in full: [70] I have gone into some detail in considering the plaintiff's right knee condition. I have already found that it is likely that in some way or other because of the work the plaintiff was doing for the second defendant as CHPP Electrical Technician, immediately prior to seeing Dr Samy on 11 July 2011, the plaintiff ruptured or tore or caused eventually the medial meniscus to break, resulting in the acute symptoms which led to his consulting Dr Samy and then Dr Young and undergoing the partial medial meniscectomy at the hands of Dr Young on 10 August 2011. The course that has then ensued was predictable. Once the medial meniscus was damaged the process of osteoarthritis was either triggered off or accelerated, leading to the deterioration which is pointed to by Dr Verheul. [71] The question is, was there an underlying degenerative process first identified at the arthroscopy in Darwin on 11 May 1998 and first adverted to by Dr Steve Baddeley when he diagnosed patellofemoral arthritis in May of 1997? Looking at the matter holistically I believe that that is highly likely. I know that there was an osteoarthritic or degenerative process affecting the plaintiff's cervical spine, affecting his thoracic spine, affecting both his shoulders, both his knees and the left hip. The areas that have not been investigated are the plaintiff's low back and his ankles and his right hip. In fact there are no X rays as far as I am aware, (sic) of either hip but everything points to a widespread degenerative process in the plaintiff's musculoskeletal system.
The judge concluded, relevantly, with respect to injury to Mr Hector's right knee at [82]: I accept that the process is the aggravation et cetera of a pre-existing degenerative condition; the award must be borne by the third defendant.
It is common ground that this was a finding of injury within the definition in s 4(b)(ii) of the WC Act.

[6]

Ground 1

In oral argument, Mr L King SC for the appellant identified the essential complaint as being that whilst Dr Harrison and Dr Schwarzer expressed views which, if acted upon by the judge could have justified the result, the judge's reasons disclose that he did not act upon those views and instead acted upon a finding as to the mechanics of the aggravation, acceleration or exacerbation of the degenerative condition in Mr Hector's right knee that is significantly different to the opinions of Dr Harrison and Dr Schwarzer. According to the submission, the judge acted upon the opinion of Dr McGill and made a finding of a specific injury to the right knee which was not pleaded nor established by the evidence. The submission continued that whilst the surgery to Mr Hector's right knee in 2011 may have contributed to the aggravation of the disease of osteoarthritis in the right knee, there was no evidence that the employment of Mr Hector with the appellant was a contributing factor to the aggravation of the degenerative condition in his right knee.
In my view, the appellant's submissions involve a misreading of the judge's reasons.
The premise of ground 1 is that the judge accepted and acted upon the opinion of Dr McGill. That is not so. After recording Mr Hector's submission, relying on the statement in Dr McGill's report that if Mr Hector had a "specific injury in 2010" (in fact 2011) that was relevant to Mr Hector's subsequent right knee progressive osteoarthritis, the judge rejected the concept of a "specific injury", expressly finding at [30] that there was no "specific injury", and no event of injury either pleaded by Mr Hector in his statement of claim or described by him in his evidence.
The only other reference in the judgment to the opinion of Dr McGill is at [68], where the judge observed that the opinion of Dr Schwarzer must be compared with that of Dr McGill and extracted some passages of Dr McGill's report, including the two highlighted passages referred to at [29] above. Read in context, the passages from Dr McGill's report were reproduced by the judge solely for the purposes of comparing Dr McGill's opinion with Dr Schwarzer's opinion. The judge's finding on the question of injury was based on his preference for the opinion of Dr Schwarzer (and also Dr Harrison) over the opinion expressed by Dr McGill.
Contrary to the appellant's submissions, the judge did not accept and act upon Dr McGill's opinion in finding for Mr Hector. The evidence of the assessment by Dr Harrison and Dr Schwarzer of the medical and injury history of Mr Hector, which the judge accepted, was sufficient to properly base the finding of injury within s 4(b)(ii) of the WC Act. No error in point of law is demonstrated in these circumstances.

[7]

Grounds 2 and 3

Grounds 2 and 3 are connected and it is convenient to deal with them together.
With respect to ground 2, the appellant submitted that there is no medical evidence to establish that the symptomatic complaints of pain in Mr Hector's right knee were caused by the tearing of the medial meniscus. According to the submission, the judge provided his own medical opinions or conclusions, which cannot fairly be extracted from the qualified medical evidence adduced at trial and all parties had not agreed that the judge's stated understanding on that matter was correct.
With respect to ground 3, the appellant submitted that there was no medical evidence to establish that the symptoms reported by Mr Hector are the only likely indication of tearing leading to rupture of the medial meniscus. The submission continued that the finding that it was probable that a complete tearing of the right medial meniscus occurred three weeks before 11 July 2011 is not supported by any opinion from the medical evidence.
I do not consider that the "no evidence" complaint has any merit.
The judge made factual findings at [31], and repeated at [70], based on an acceptance of Mr Hector's evidence of symptoms of pain in his right knee from late 2010 occurring at the end of the day that subsided overnight which gradually got worse and ultimately symptoms of pain continuing into the next day: see [12]-[13] above. That evidence was supported by Dr Samy's notes of the history he had obtained from Mr Hector, concerning the timing and circumstances of the symptoms of pain in his right knee commencing within a few months of starting at the Liddell CHPP in October 2010, followed by some acute symptoms following "a big day at work which made it [the pain] worse", about three weeks before July 2011.
Given the timing of the report by Mr Hector of some acute symptoms of pain in his right knee about three weeks before 11 July 2011 relative to the identification by Dr Young on 10 August 2011 of the tear in the medial meniscus, there was evidence supporting the judge's finding of either a rupture or tear or break of the medial meniscus, at about the time of the acute symptoms reported by Mr Hector. That finding did not involve the judge acting as his own expert. The finding was based on the symptoms of acute pain reported by Mr Hector and the report by Dr Young of his findings upon performing the arthroscopy.
The finding of pain as a result of internal disruption of the knee, such as may occur with a meniscal tear, was also supported by the opinion of Dr Schwarzer who, when describing the consequences of loss of integrity of the meniscus as a result of a tear, referred to loss of normal cushioning of the joint surfaces and resultant pain in the joint capsule, synovium and subchondral bone: see [27] above.
No error in point of law has been demonstrated.

Parties

Applicant/Plaintiff:

Liddell Coal Operations Pty Limited

Respondent/Defendant:

Hector

Legislation Cited (2)

Workers Compensation Act 1987(NSW)

District Court Act 1973(NSW)

Cases Cited (9)

Solicitors: Sparke Helmore Lawyers (Appellant) Whitelaw McDonald Lawyers (Respondent) File Number(s): 2020/166721 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil (Coal Miners' Workers Compensation List) Citation: [2020] NSWDC 228 Date of Decision: 8 May 2020 Before: Neilson DCJ File Number(s): RJ00088/18

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Mr Andrew Hector, was employed as an electrical technician and electrical shift supervisor in the coal industry, including by the appellant, Liddell Coal Operations Pty Limited (Liddell). Mr Hector's employment required him to carry heavy tools and move frequently around the coal washery plant, including up and down stairs, walkways and ladders over six levels. In 2010, Mr Hector began experiencing pain in his right knee. He was diagnosed in 2011 as having a pre-existing degenerative condition, being osteoarthritis of the right knee. He underwent knee replacement surgery in 2016 and 2017. His employment was terminated in 2017. The essential issue in the proceedings below was whether Mr Hector's employment with the appellant contributed to an aggravation, acceleration or exacerbation of a disease, being osteoarthritis in his right knee. The trial judge (Neilson DCJ) found that it had and made an award of weekly benefits and compensation. Liddell appealed asserting an error in point of law that there was no evidence on which the trial judge could have made the finding of injury within s 4(b)(ii) of the Workers Compensation Act 1987 (NSW). Held, dismissing the appeal (per Gleeson JA; Basten and McCallum JJA agreeing): It was open to the trial judge to prefer the respondent's medical evidence assessing the medical and injury history of Mr Hector. That evidence was sufficient to properly base a finding of injury within s 4(b)(ii) of the Workers Compensation Act, namely that Mr Hector's employment with the appellant was a contributing factor to the aggravation, acceleration or exacerbation of the degenerative condition (osteoarthritis) in his right knee: [41]-[43]. Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697; [2000] NSWCA 116 referred to.

(2000) 19 NSWCCR 697

(1985) 4 NSWLR 139

(2003) 77 ALJR 1088

(2010) 241 CLR 390

[2003] HCA 26

[2000] NSWCA 116

[2010] NSWCA 239