Ervine v Mt Arthur Coal Pty Limited [2022] NSWDC 732

District Court New South Wales

Medium Neutral Citation: Ervine v Mt Arthur Coal Pty Limited [2022] NSWDC 732 Hearing dates: 23 August 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Civil Before: Neilson DCJ Decision: I approve the redemption. Catchwords: CIVIL – WORKERS COMPENSATION – REDEMPTION – Claim for weekly payments – Prospects of claim for compensation – Redemption as compromise settlement. Legislation Cited: Workers Compensation Act 1987 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff - Mark Lindsay Ervine Defendant - Mt Arthur Coal Pty Ltd Representation: Plaintiff – Mr Benson, D. Defendant – Mr Rowles, T. File Number(s): 2022/00162081 Publication restriction: Nil.

Judgment 1. HIS HONOUR: Currently before me is an application for redemption in the sum of $100,000.00. Clearly, the parties have reached a compromise. The Plaintiff is currently 55 years old. He claims weekly payments from 2 September 2020, that is from his 53rd year. If he be successful, he would be entitled to weekly payments of compensation for at least 14 years taking him to the age of 67. On the medical evidence before me, there appears to be no dispute that the Plaintiff is totally incapacitated for work and will remain totally incapacitated for work. It is clear that, in the past, he has incurred considerable expenses for treatment of his condition, and there would be a substantial liability under s 60 of the Workers Compensation Act 1987. Accordingly, I am required to consider whether it is likely that the Plaintiff would succeed in his claim, currently before the Court, and if that be unlikely it behoves me to approve the redemption application. 2. There are competing medical opinions before me. They are both medico-legal. I have nothing from any treating doctor by way of opinion as to the causation of the Plaintiff's condition. The Plaintiff relies upon reports from Dr Anthony Johnson, a respiratory and sleep physician, practicing at Liverpool in Western Sydney. Dr Johnson is of the view that the Plaintiff has severe chronic obstructive pulmonary disease, which he believes to be due to the Plaintiff's history of smoking cigarettes. He has also expressed the view that the Plaintiff's exposure to dust in the course of his working in the coal mining industry has been likely to have exacerbated his underlying chronic obstructive pulmonary disease. In a further part of his initial report, he says this: "I consider his incapacity for work has been aggravated by his dust exposure at work during the period of 1997 - 2020. This is likely to be permanent." The basis on which the doctor expresses that view has not been adequately explained. It very much resembles an ipse dixit. Of more importance, however, for the present purposes, is the fact that the doctor said that there was no history of childhood asthma, although he accepted the Plaintiff may have had long standing asthma. 1. The Defendant relies upon opinions expressed by Associate Professor David McKenzie, who is also a respiratory and sleep physician practicing, inter alia, at the Prince of Wales Private Hospital at Randwick. The first part of Dr McKenzie's opinion tells me his background. That includes this: "I have had extensive training and experience in occupational lung disease and my department provided pulmonary function and exercise testing services to the Dust Diseases Board of New South Wales for many years. I have also participated in screening of lung function and chest radiographs in various industries including asbestos mining, quarrying, power stations and glass fibre insulation. Between 2004 and 2010 I was the medical supervisor of the Australasian component of the British Coal Compensation Process which involved lung function testing and examination of more than 2000 former British coal miners. I have examined claimants and prepared medicolegal reports in relation to various occupational disorders related to asbestos and silica exposure, occupation asthma, reactive airway dysfunction syndrome, neuromuscular disorders and trauma affecting respiration and various sleep disorders. I have also provided reports on health assessment and air quality in relation to mining, quarrying, power stations and other industries and appeared as an expert witness on numerous occasions." 1. The Plaintiff's occupational history has been well set out by Dr McKenzie in his report. I should equally state that it has also been well set out by Dr Johnson in his report, and in the chronology prepared by learned Counsel for the Plaintiff. 2. Under the heading "Respiratory history" Dr McKenzie records this: "Mr Ervine had recurrent bronchitis or bronchiolitis as a child. He was given a diagnosis of asthma. He recalls having exacerbations most winters lasting three or four weeks. He was admitted to hospital several times during childhood and adolescence. He was treated with asthma inhalers including Ventolin (salbutamol), and Becotide (a corticosteroid). He also recalled doing postural drainage and his mother was shown how to percuss his chest to help him expectorate sputum. However, he was not given a diagnosis of bronchiectasis at that time. Mr Ervine continued to have episodic asthma throughout his life. In his early adult life he stopped using the preventer puffer, Becotide, and was taking the salbutamol inhaler and theophylline (bronchodilator) tablets. At some point he started the combined inhaler Seretide and thinks he might have been using that for close to 30 years. He had no admissions to hospital for asthma in his adult life until he became unwell in 2018." 1. Clearly, that history indicates a much better and more accurate history taking than that performed by Dr Johnson, and clearly shows a flaw in Dr Johnson's opinion. Another part of Professor McKenzie's opinion is this: "Mr Ervine stated that he started smoking at the age of 21 and stopped smoking about three months ago [history given 7 September 2021]. This means he smoked for about 33 years. He said that he averaged 15 cigarettes daily. This gives a cumulative smoking history of approximately 25 pack years..." 1. According to the evidence given by the Plaintiff today, he in fact has relapsed to smoking from time to time and that he last smoked cigarettes one month ago. 2. Relevantly, it is important to know some details of the Plaintiff's occupational history. Between 1986 and 1990, he worked at a feed lot in the Hunter Valley. He worked as a mill operator handling a variety of grains including wheat, barley, sorghum, oats, and corn. The grains were cooked with steam and flaked in a cutting mill. The Plaintiff would have been exposed to grain dust and other substances associated with grain including mould, insects, and insecticide. Again, between 1991 and 1996 he was employed in the same feed lot doing the same work, albeit that it had been renamed. 3. Professor McKenzie's history continues thus: "Between 1996 and 1998, Mr Ervine was employed by Cook's Construction at the Bayswater Colliery as a truck driver. He drove dump trucks and water trucks. When driving the dump trucks he was mostly required to cart overburden. He would drive to an area that had been recently blasted and front-end loaders would fill the tray of his truck. He would then transport the load and dump it. He spent his time in an air-conditioned cabin. The air conditioning systems were invariably effective in keeping dust out of the cabin. He was exposed to dust when he got out of the cabin at 'crib time' for morning tea and lunch and at the end of his shift. In 1998, Mr Ervine spent about one month working at the feedlot. In 1998, Mr Ervine worked for about eight months for a company known as CTM. He worked as a spray painter painting wheel rims for trucks and other vehicles. He sprayed primer which had only one part, and he sprayed a two-pack overcoat. He worked in a spray booth that had fans to exhaust the fumes. He wore a rubber mask with cartridge filters. This type of respiratory protection is possibly not adequate when spraying two-pack paints. A fully ventilated hood with an external air supply would be considered the industry standard. Nevertheless, Mr Ervine was not aware of any worsening of his asthma or aggravation of respiratory symptoms during this period. Between 1998 and 2000, Mr Ervine was employed by Bowditch and Partners as a plant operator. He drove graders, dozers, loaders and excavators. He did quite a bit of work for the railways moving ballast for railway lines. He also worked on the construction of roads. Some of the work was done at mines. In this period he believes he was only removing topsoil and was not involved in the excavation of hard rock. His job was to strip the topsoil before the drillers came in to prepare holes for blasting. He also spent some time rehabilitating land by moving overburden. During this period he was mostly inside air-conditioned cabins of various types of plant. He would have been exposed to some general dust. There was no exposure to coal dust and relatively little exposure to silica, based on his description. Between 2000 and 2020, Mr Ervine was employed at the Mount Arthur coal mine in the Hunter Valley, NSW. He worked as a plant operator for the first 18 months driving trucks, loaders, graders and bulldozers. He was involved in loading and transporting both overburden and coal. Therefore, there would have been a potential for exposure to coal dust and silica. The cabins of the plant were air conditioned and filtered. At times dust would come into the cabins. The filters were replaced on a weekly basis by mechanics. Mr Ervine was randomly chosen to wear a dust sampler during his employment at Mount Arthur. He believes this happened approximately every six months. The results were usually sent to him, and he said they were always said to be within acceptable limits. For the past 18 years or so, Mr Ervine worked as a drill operator preparing holes for the blasting crews. The drills were attached to 'caterpillar' tractors with air-conditioned cabins. The drill rig had a water attachment designed to suppress dust. Mr Ervine believed that this system was reasonably effective. However there was dust in the general atmosphere from various mining and preparatory activities going on throughout the facility. From time to time the seals on the doors were damaged and some dust would come into the cabin. The filters were replaced on a weekly basis. He would be exposed to this dust when he got out of the cabin. At crib time and at the end of the shift he would dismount from the drill rig and walked to a nearby land cruiser or similar vehicle in which the operators would drive to the crib room. The vehicle was air conditioned as was the demountable crib room. Mr Ervine stated that he did not wear dust masks when outside the cabins until the last few years of his employment at Mount Arthur. For one or two after hours shifts per month, Mr Ervine worked with the blasting crew stemming the holes after the explosives had been placed. He would stand near the hole holding a chute to delivery gravel. Some dust would be liberated as the gravel was poured into the hole. In the early years Mr Ervine did not wear a mask doing this job but would try and stand up-wind to minimise his exposure. In later years masks were required. In 2020 Mr Ervine underwent a routine medical assessment which he failed due to abnormal lung function tests. He has not worked since." I have quoted that in extenso because it is a much fuller history of the Plaintiff's exposure to "dust" in the coal mining industry than that provided by Dr Johnson. A further part of Dr McKenzie's medical history is this: "Three or four years ago Mr Ervine began to notice swelling of the legs and some breathlessness on exertion. In February 2018 he was admitted to hospital with an extensive deep vein thrombosis in the left arm. He was found to have polycythaemia which was ultimately attributed to chronic hypoxaemia and hypoventilation in sleep. In May 2018, Mr Ervine was admitted to John Hunter Hospital with type 2 respiratory failure with a markedly elevated carbon dioxide level of 70 mm Hg. He also had right ventricular failure secondary to hypoxia due to his lung disease and nocturnal hypoventilation. He had symptoms at the time suggestive of severe obstructive sleep apnoea. During that admission he was commenced on non-invasive positive pressure ventilation and was sent home with a 'BiPAP' machine. He was also provided with supplemental oxygen to use with non-invasive ventilation at night. He was also treated with diuretics. He was still taking anticoagulant medication following the deep vein thrombosis. Correction of the sleep apnoea and nocturnal hypoxaemia with BiPAP produced a marked improvement in Mr Ervine's condition. His daytime somnolence improved, and he felt like he had more energy. Mr Ervine stated that he took 12 months of sick leave following the admission and returned to work in May 2019. He had undergone a work medical and was deemed fit to return to work. He continued to manage full duties until he had a further medical assessment in February 2020 which he failed. He took leave and was on the Covid Jobkeeper payments for a few months. He was admitted to Scone Hospital in April 2020 with pneumonia and had a further admission in July 2020 also with pneumonia. He was then put off as medically unfit." 1. Of course, it is noteworthy that after the Plaintiff stopped working in February 2020. He had a hospitalisation due to the underlying conditions which could not possibly have been provoked by work which ended in February 2020. 2. The Plaintiff told Dr McKenzie that there had been minimal, if any, deterioration in his respiratory function between the middle of 2018 and the time he was assessed by Dr McKenzie in September 2021. Dr McKenzie's conclusions are lengthy. I shall quote only parts of it. It is this: "Mr Ervine has chronic airflow limitation which is due to his lifelong asthma, bronchiectasis and past cigarette smoking. It is difficult, if not impossible, to separate the effects of these factors in Mr Ervine's current level of impaired lung function. In my opinion, the asthma likely to have been an important factor. He has had lifelong asthma and has been on inhaler therapy for most of his life. He has worked in occupations that are known to aggravate asthma, particularly the work with grains and, possibly, the work with spray-painting. Factors which support the diagnosis of asthma and its likely significant contribution to the airflow limitation include: the long-standing history of asthma with exacerbations, he elevated serum IgE level and eosinophil count which indicates a likely sensitisation of the airways to allergens, possibly including Aspergillus, the pulmonary diffusing capacity which remains well within the normal range. Cigarette smoking is likely to have made a significant contribution to the degree of airflow limitation and to the relative lack of reversibility with bronchodilators. However, the CT scan reports do not indicate any pulmonary emphysema. Secondly, COPD related to smoking is usually associated with significant impairment of pulmonary diffusing capacity, whereas in this case there was only a mild impairment. The radiology reports indicate fairly diffuse bronchiectasis, particularly in the lower lobes. Mr Ervine gave a history of having postural drainage and vibro-percussion of the chest in childhood and adolescence. This suggests that the bronchiectasis may be long-standing. If so, it is likely that it is also contributing to his airflow obstruction. Mr Ervine does not have coal workers pneumoconiosis, silicosis, mixed dust pneumoconiosis or diffuse dust fibrosis. Therefore, in my opinion, it is unlikely that Mr Ervine's exposure to coal dust and silica over the past 20 years has made a clinically significant contribution to the current severe impairment of airway function..." 1. He then goes on to discuss the possibility of aggravating factors, the likely input into the Plaintiff's respiratory condition of his sleep apnoea, and he then goes on to comment on life expectancy, and then concludes with this after discussing the need for ongoing treatment: "In my opinion, Mr Ervine does not have any New South Wales coal mining industry employment-related respiratory condition. Therefore, he does not and will not require any treatment for such a condition." He goes on to point out, as I have already pointed out, the Plaintiff is severely disabled because of his respiratory condition. 1. Bearing in mind what is before me, it is highly likely that the Plaintiff would fail in his claim for compensation and, clearly, would fail in a claim for either the payment of past or future expenses for his respiratory condition. Accordingly, I approve the redemption. By consent orders in accordance with short minutes of order which I initial and place with the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2023