Agland v BHP Billiton [2017] NSWDC 29

District Court New South Wales

Medium Neutral Citation: Agland v BHP Billiton [2017] NSWDC 29 Hearing dates: 08 February 2017 Date of orders: 08 February 2017 Decision date: 08 February 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: Redemption approved.

By consent, orders in accordance with short minutes of order. Catchwords: WORKERS COMPENSATION – COAL MINERS – Consent to redemption application – Osteoarthritis of right hip – Is the proposed sum adequate for redemption Legislation Cited: Workers Compensation Act 1987 Category: Procedural and other rulings Parties: Donald Gordon Agland (Plaintiff) BHP Billiton (Defendant) Representation: Counsel: Mr P O'Rourke (Plaintiff) Mr T Rowles (Defendant)

Solicitors: Not recorded (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): RJ65/2016 Publication restriction: No

Judgment 1. HIS HONOUR: The parties have placed before me a redemption application in the sum of $120,000. I need carefully to consider the evidence placed before me because on one view the sum proposed is inadequate. According to the statement of claim the plaintiff claims lump sums under s 66 amounting almost to $140,000 plus a lump sum under s 67. He also claims weekly payments of compensation dating back to 30 January 2004, a period of 13 years. 2. One of the substantial items of the claim is a claim in respect of the plaintiff's right hip which it is alleged was injured in the course of his employment as a coal miner. The plaintiff has undergone a total right hip replacement which is a very costly medical procedure. I have been told that there are outstanding $2,000 in unpaid expenses claimed under s 60 but there might also be a larger refund due to Medicare if it were believed that the plaintiff's right hip condition was referrable to his employment with the defendant. Furthermore, bearing in mind the plaintiff's age, he is currently 62 years old, it may be that he will require before he departs this mortal coil a further hip replacement. 3. The first part of the plaintiff's working history is well set out, and fairly set out, by Dr David Millons in his first report of 13 January 2016. That history is this: "Mr Agland spent 30 years in the mining industry from 1974 through 2004 (sic). He was a Federation miner/machine man. He worked several pits over the years including Lambton, John Darling, Awaba State, Chain Valley and Southland underground colliery. He performed the normal duties of an underground miner. He worked dog watch, towards the end of his time working 10 12 hour shifts. I am cognisant of the conditions under which miners work, having visited mines in the past, underground, long wall and open cut. The work is heavy and demanding. It entails a lot of travelling over rough, uneven roads. The lighting is limited and miners have to wear helmets with lamps, a battery and other equipment such as a self rescuer. The work entails driving various underground machines such as shuttle cars, miners, Eimcos, PJBs, and the like. There is loading and unloading of supplies and shovelling of spillage. Other work entails rib and roof bolting, in the past with handheld machines, now with machines off the side of the miner. There is continually bending and lifting involved. The work is clearly quite demanding and the environment is somewhat hostile." 1. The plaintiff described himself to Dr Abe Isaacs when examined by him on 19 April 2016 as having retired from the mining industry on 29 January 2004. He then commenced working in another industry. The next part of Dr Millons' history is this: "Mr Agland left the mining industry in 2004 and then took up a position with R T C Maintenance in a supervisory role, supervising trades people working on Housing Commission homes. He did that for the best part of seven years. He then worked for L N R Roofing for a time. That entailed going up and down ladders, checking on work." The rest of the plaintiff's employment history can be taken up from the history obtained by Dr Isaacs: "On 12 October 2011 he commenced work at G B T Services as a Trades Assistant undertaking light work repairing train seats. While employed with GBT Services he suffered a stroke and was off work for nearly six weeks. He resumed work with GBT but since the company lost the contract he lost his job sometime in April 2013. Since then he has not returned to any work." The latter history ought to have been modified by the fact that the plaintiff has done some volunteer charity work since he left GBT Services. However there is no suggestion that the charity work caused any problem with any part of the plaintiff's body. 1. The history given by the plaintiff to Dr Millons about the condition of his right hip is this: "Mr Agland developed increasing pain and stiffness in the right hip over a two year period prior to May 2015. His mobility was decreasing, his pain was increasing and Dr Tiwari in John Hunter Hospital performed a total hip replacement with a good result. Mr Agland goes for a walk most days. He manages one kilometre. His weight gone up with his inactivity. His pain has been considerably reduced as a result of the surgery". In the extensive medical records put before me by the plaintiff's lawyers the first mention of any problem with the right hip was on 16 July 2014 when the plaintiff presented to Dr Damien Whittaker. Dr Whittaker obtained records of the practice going back many, many years but there is no reference in those old records to any complaint about the plaintiff's right hip. 1. Dr Isaacs in his lengthy medicolegal report details ten separate radiological investigations that the plaintiff has undergone over the years. The three related to the right hip are dated 8 September 2014, 27 January 2015 and 23 April 2015. It is abundantly clear that the plaintiff's symptoms in the right hip started out probably after he had stopped any form of paid remuneration. In those circumstances, Dr Millons cannot attribute the condition of the plaintiff's right hip to any work he did as an underground miner. In Dr Millons' view, such would be mere speculation. It is clear from the radiological reports that are available that the plaintiff's right hip osteoarthritis is confined to the hip on that side. That is, that there is no suggestion of osteoarthritis in the plaintiff's left hip. 2. It is postulated by, inter alios, Dr Isaacs and Dr Hopcroft that the plaintiff sustained a frank injury to his hip sometime during his career in the coal mines but there is no contemporaneous evidence to support such a proposition. Dr Isaacs and Dr Hopcroft, together I suspect with Professor Ghabrial, take the view that because of the heavy nature of work in the mining industry that such work must have advanced osteoarthritis in the plaintiff's right hip. The flaw in that argument is that there is no osteoarthritis in the left hip. Bearing in mind the description of the work provided by Dr Millons, one would expect each hip to be equally affected by working in a coal mine. Shovelling coal, heavy lifting and bending throw just as much strain on the right hip as they throw on the left hip. Walking long distances underground in muddy mines throws equal force on each hip. If the work of a coal miner were to cause osteoarthritis in the hip one would expect the plaintiff's hips to be equally affected. They are not. Therefore I must accept the view proposed by Dr Millons that the condition of the plaintiff's right hip, the advanced osteoarthritis in the hip, is constitutionally or idiopathically determined and has nothing to do with the type of work the plaintiff did as a coal miner. 3. In those circumstances and bearing in mind that Dr Millons thinks that the plaintiff has lost 40% of the efficient use of his right leg because of the hip condition and Dr Isaacs, 50% of the efficient use of the leg and Dr Hopcroft 55% of the efficient use of the leg and Dr Ghabrial 50% of the efficient use of the leg and bearing in mind that that cannot be compensable, it appears to me that the sum proposed for redemption is adequate. 4. I approve the redemption. By consent, orders in accordance with short minutes of order which I have initialled and placed with the papers.