Lydon v BHP Group Limited

Cases Cited: Nil.

Texts Cited: Nil.

Category: Principal judgment

Parties: Plaintiff: Anthony Mathew Lydon
First Defendant: BHP Group Limited
Second Defendant: Coal & Allied Operations Pty Ltd
Third Defendant: O’Donnell Griffin Pty Ltd
Fourth Defendant: TESA Mining (NSW) Pty Limited
Fifth Defendant: Muswellbrook Coal Company Pty Ltd
Sixth Defendant: ACQ Dartbrook Management Pty Ltd
Seventh Defendant: Centennial Newstan Pty Limited
Eighth Defendant: North Wamba Pty Ltd
Ninth Defendant: Peabody Energy Australia Coal Pty Ltd

Representation: Counsel:
Plaintiff – Mr McMahon, S.
Defendants – Mr Rowles, T.
Solicitors:
Plaintiff – Whitelaw Mcdonald
Defendants – HWL Ebsworth Lawyers

File Number(s): 2024/00049395

Publication restriction: Nil.

Judgment

1. HIS HONOUR: Currently before me is a redemption application in the sum of $180,000. On one view of the medical evidence that settlement would be inappropriate. In particular Dr Abraham Isaacs, an orthopaedic surgeon practising here in Newcastle has diagnosed a 48% loss of efficient use of the plaintiff's right leg at or above the knee and a 30% loss of efficient use of his left leg at or above the knee because of his having undergone total hip replacement on each side leading to those losses of the efficient use of each of the lower limbs as a whole. Were the opinion of Dr Isaacs correct the sum proposed would be inadequate.

2. The first thing to bear in mind is the plaintiff's employment history. This has been set out by Dr Anthony Schwarzer, a rheumatologist and pain physician practising in Shortland. His report of 11 August 2023 says this:

"Mr Lydon commenced work in the underground coalmining industry on 5 December 1977. His work was an underground coalminer. However, from April 2013 Mr Lydon was required to work on pit top as a Maintenance Planner / office worker using multiple computer screens requiring him to sit at a workstation for several hours at a time and having to rotate his head to watch each screen, often for long periods of time.

Mr Lydon was employed at the Lambton Colliery at Redhead from 5 December 1977 to 5 January 1981. From this date to 17 May 1982 he was employed as an electrical contractor. From 17 May 1982 to 19 August 1988 he was employed at the Stockrington No 2 Colliery. He then worked outside the coalmining industry till early 1995. From early 1995 to 9 July 1996 he worked at the Stratford Colliery at Gloucester.

He worked at the Dartbrook Colliery from 9 July 1996 to 28 January 1997. He worked at the Muswellbrook No 2 Colliery from 29 January 1997 to 15 March 1997. He worked from 23 March 1997 to 26 April 1997 at the Dartbrook Colliery. He worked at the Dartbrook Colliery from 29 April 1997 to 13 October 2006. He worked at the Newstan Colliery from 13 October 2006 to 17 December 2006. From 18 December 2006 onwards he had been working at the North Wambo Colliery. That employment has now ceased."

3. Mr Lydon is now 67 years of age. He underwent total left hip replacement at the hands of Dr Jonathan Young, an orthopaedic surgeon, on 21 April 2021. He then underwent total right hip replacement under Dr Young's care again at the Lingard Private Hospital on 23 February 2022.

4. There is no opinion before me from Dr Young as to whether the need for the operative replacement of his hips was causally related in any way to his work as an underground coalminer. Dr Young merely observes in his first report that the plaintiff worked as a maintenance planner at a Hunter Valley mine. Essentially Dr Young took a history of the plaintiff's work being largely sedentary albeit the plaintiff did need to go down into the pit from time to time concerning maintenance. However, most of his work was office work.

5. For the plaintiff's right knee he has been treated by Dr Christopher Dunkley and there was no suggestion that the plaintiff's problems with his right knee are not causally related to his work as an underground coalminer. The plaintiff has been seen for his spine by Dr Richard Ferch, a neurosurgeon specialising in spinal surgery, who diagnoses an aggravation, et cetera of the cervical spine and lumbar spondylosis as a result of the plaintiff's work as a coalminer.

6. The reports from treating doctors, excepting the general practitioner to which I shall return in due course, are silent as to the causation of the plaintiff's left and right osteoarthritic hip condition. The voice, so to speak, in the wilderness is Dr Abraham Isaacs.

7. On the second page of his report Dr Isaacs outlined 11 frank injuries which occurred to the plaintiff in the course of his employment between 12 August 1987 and 2 July 2022. Not one of them relates to either of the plaintiff's legs. On examination Dr Isaacs said this about the plaintiff's hips: "Movements of both hips were reasonably good and pain free." That of course was an opinion expressed after the total hip replacements.

8. Nevertheless, the doctor went on to diagnose "aggravation of osteoarthritis both hips - bilateral total hip replacement." In his assessment of entitlements under s 66 of the Workers Compensation Act 1987 as it operates for coalminers Dr Isaacs said this:

"The permanent percentage loss of use or loss of efficient use of the right leg at or above the knee including loss below the knee due to the injury to the right hip and right knee arising from his employment in the coalmining industry is assessed at 48% (without sciatic nerve root irritation). The permanent percentage loss of use or loss of efficient use of the left leg at or above the knee including loss below the knee due to injury to the left hip is assessed at 30% (without sciatic nerve root irritation and excluding the lower back)."

9. One must ask oneself what is the "injury" to which the doctor was referring? It is not appropriate merely to say that the injury is a condition such as osteoarthritis because osteoarthritis can be genetic or constitutional or it can be result of injury or it can be a combination of the two. Merely saying it is work related does not answer the necessary question.

10. In paragraphs numbered 14 to 28 Dr Isaacs expresses a number of views. In paragraph 14 he expressed the view that the 'injury/condition' suffered by the plaintiff to both his left and right hip was a disease of gradual process arising from the duties that the plaintiff did in the course of his employment in the coalmining industry. He does not tell me how that occurred. In other numbered paragraphs he refers to causation of problems in the plaintiff's neck, back, shoulders and knees but does not specifically mention the hips. Paragraphs numbered 24 and 25 are these:

"It is my opinion that the use of pneumatic tools including those generating vibrations has subjected all of the body parts including arms and neck to severe shocks causing injury to same. This has resulted in the aggravation, acceleration and deterioration of the underlying degeneration of various parts of the body, worsening degeneration and resulting in an increase of pain with activities bringing about the symptoms followed by the disability.

It is my opinion that the exacerbation of the aforementioned injuries/conditions has occurred due to the requirement to wear and/or carry heavy items including pit cap, cap lamp, battery, self‑rescuer, tools, and monitoring equipment, all of which make it difficult to maintain proper balance, thereby placing unnatural strains and stresses upon various parts of the body. This has resulted in the aggravation, acceleration and deterioration of the underlying condition in various parts of the body, worsening the underlying degeneration and resulting in an increase of pain with activities bringing about the symptoms followed by the disability. "

11. They are merely ipse dixits. The doctor does not explain how the use of pneumatic tools could affect the condition of osteoarthritis of the hip, nor does the doctor tell me how wearing a number of items on a belt or on the overalls worn by an underground coalminer could possibly accelerate or cause to be made worse osteoarthritis of the hips. The issue is just simply not addressed when something is in dispute as it is in the current case.

12. In a second report bearing date 31 October 2023 Dr Isaacs again seeks to address the issue. He says this:

"It is my opinion that the right and left hip replacements undertaken by Dr Young were necessitated by the injuries sustained in the course of Mr Lydon's employment in the coalmining industry."

He does not explain what the injuries were. It is another ipse dixit and is of no utility whatsoever.

13. I am not persuaded on the balance of probabilities that the condition of either of the plaintiff's hips was caused or made worse by the type of work the plaintiff did as an underground coalminer bearing in mind the significant fact that from April 2013 the plaintiff was not required to work underground but did most of his work at pit top as a maintenance planner / office worker according to the history obtained by Dr Schwartzer. Why, when the work got easier, the hips should get worse has never been explained. It is completely inexplicable.

14. In the circumstances the sum proposed for redemption of the employer's liability is reasonable.

15. I approve the redemption. By consent orders in accordance with the short minutes of order which I have initialled and placed with the papers.

**********