BHP Billiton Limited v McKensey
[2014] NSWDC 210
•27 October 2014
District Court
New South Wales
Medium Neutral Citation: BHP Billiton Limited v McKensey [2014] NSWDC 210 Decision date: 27 October 2014 Before: Neilson DCJ Decision: Summons dismissed
Catchwords: SUMMONS - Defendant previously applied for medical panel certificate in respect of boilermakers deafness - Plaintiff sought to strike out defendant's application for further medical panel - Different employers Legislation Cited: Workers Compensation Act 1987 (NSW), s 72
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 122(2)Category: Principal judgment Parties: BHP Billiton Limited (Plaintiff)
Bruce R McKensey (Defendant)Representation: Counsel
Mr M Best (Plaintiff)
Mr D Stanton (Defendant)
File Number(s): RJ454/14 Publication restriction: No
Judgment
HIS HONOUR: This is a summons which was filed by BHP Billiton Ltd on 16 September 2014. The primary relief sought in the summons is that the application for a medical panel filed by the defendant worker, being RJ361 of 2014, be struck out. Briefly, the worker's employment history is this:
Period
Employer's name
January 1966 - December 1969
Apprentice fitter and turner
Stewart and Lloyds Newcastle
January 1970 January 1971
Burwood Colliery
BHP Northern Collieries
January 1974 - May 1989
A number of different collieries, the last being West Wallsend Colliery
BHP Northern Collieries
May 1989 - May 1990
A private company of which the plaintiff and his wife were the sole shareholders and directors contracting to ACIRL as an underground mining consultant
May 1990 - July 1999
Chief Inspector of Coal Mines
Department of Mineral Resources
July 1990 - June 2007
Consultant Mining Engineer for less than ten hours per week
McKensey Mining Services Pty Ltd
On 4 April 2011 the worker applied for a medical panel certificate in respect of boilermakers deafness. The employer named in that application was McKensey Mining Services Pty Ltd. On 22 March 2012 a medical panel certified, pursuant to s 122(2) of the Workplace Injury Management and Workers Compensation Act1998 that the worker was suffering from binaural hearing loss of 14.1% after a deduction for presbycusis and that the plaintiff was suffering from no other form of hearing loss or deafness.
On 27 May 2012 the worker commenced proceedings in this Court nominating McKensey Mining Services Pty Ltd as the defendant. The insurer of McKensey Mining Services Pty Ltd was QBE Workers Compensation (NSW) Ltd. Messrs Moray & Agnew filed a defence to the worker's statement of claim giving two effective grounds of defence:
"(a) That the defendant was not an employer in the coal industry.
(b) That the plaintiff is not a coal miner within the meaning of the legislation."
In addition to those particulars, the defence formally denies the worker's particulars as being accurate or complete. On 26 July 2013 the worker discontinued those proceedings by filing a notice of discontinuance before Assistant Registrar O'Connell. Whether McKensey Mining Services Pty Ltd employed the worker in the coal mining industry and whether the worker was a "coal miner" within the meaning of the workers compensation legislation is an interesting subject.
There was no formal averment made by McKensey Mining Service Pty Ltd that it was not a noisy employer as that term is understood in workers compensation jurisprudence. I am told, without objection, that the worker may not be entitled to recover lump sum compensation for boilermakers deafness under the workers compensation legislation that currently applies to all those who are not coal miners. The worker, on 26 August 2014, filed an application for a medical panel nominating as his employer BHP Billiton Ltd. It is that application which the current plaintiff seeks to have dismissed or struck out.
Section 72 of the Workers Compensation Act1987 was repealed by Act No 61 of 2001, which repeal came into force on 1 January 2002. However, the repealed s 72 is still applicable to coal miners. The first three subsections of s 72 are these:
"(1) If the loss suffered by a worker is:
(a) a loss, or a further loss, of hearing due to
boilermakers deafness or any deafness of similar origin, and
(b) the extent of the loss, or further loss, is disputed
the worker must apply under s 122 of the 1998 Act for reference of the matter to a medical panel.
(1A) Subsection (1) does not prevent the employer from applying under s 122 of the 1998 Act for reference of a matter to a medical panel and that subsection does not require the worker to apply if the employer has already done so.
(1B) Subsection (1) applies even if Court proceedings have been commenced in respect of the claim concerned."
Clearly, if the worker wishes to pursue a claim for boilermakers deafness against BHP Billiton, he must apply eventually for a medical panel certificate pursuant to s 122 of the 1998 Act. That must be applied for before the Court can finalise any claim for compensation made by the worker for boilermakers deafness against BHP Billiton. Clearly, the worker has applied for the medical penal certificate in order to commence proceedings against BHP Billiton or one of its subsidiaries claiming that his last noisy employer was, in fact, the West Wallsend Colliery. It would appear from a letter of 6 May 2010 addressed to Coal Mines Insurance that the employer was, in fact, a company rejoicing in the name of "BHP Northern Collieries".
As a pragmatic matter I asked Mr Stanton of counsel, who appears for the worker before me, whether his client was prepared to accept the medical panel certification of 22 March 2012. However, he said he did not have instructions to do so. That is confirmed by pars 10 to 13 of the affidavit of John McDonald sworn on 23 October 2014 which are:
"10. On 23 July 2014 I did telephone Mr Daniel Wilson [manager of Speers Point office of Coal Mines Insurance Pty Ltd] again. Mr Wilson was unavailable. A message was left with a member of his staff to the effect:
'Can we agree on quantum with them only the last noisy employer in dispute. Quantum to be based upon medical panel certificate dated 22 March 2012'.
11. On or about 23 July 2014 I had a telephone attendance upon Mr Wilson who said words to the effect:
'I do not think we could agree on quantum based upon the earlier Medical Panel. I will give it further consideration and advise.'
12. On 31 July 2014 I did further telephone Mr Wilson. He being unavailable I left a message requesting that he return my call.
13. Mr Wilson did return my telephone call and advised words to the effect:
'We will not agree in quantum. You will need to go to Medical Panel'."
Clearly, there is a dispute as to whether the worker was a coal miner when he was employed by McKensey Mining Services Pty Ltd. If he were, there is still a dispute as to whether that employer was the last noisy employer. I hazard the observation that, although such was not pleaded in RJ280 of 2012, if McKensey Mining Services Pty Ltd is joined in fresh proceedings brought against BHP Billiton Ltd or its appropriate subsidiary, such a denial will be made. No doubt the defence filed in the earlier proceedings will be tendered by the current plaintiff and arguments will no doubt be made that the failure of the defendant in the earlier proceedings to traverse the suggestion that it was the last noisy employer, will be said to be either an admission or that it creates a waiver or estoppel and that is another interesting question.
However, it is clear that a supplementary opinion obtained from the worker's qualified otorhinolaryngolist, Dr Hopkins, suggests that the worker's employment with McKensey Mining Services Pty Ltd may not have been sufficiently noisy to enable it to be held to be the last noisy employer. In particular, that employer may allege that the extent of his exposure to loud noise did not constitute a Daily Noise Dose of one when one looks at the restricted times in which he visited coal mines.
However, if McKensey Mining Services Pty Ltd is successful in such a defence, the question would then become whether the State of New South was his last noisy employer, considering the plaintiff's position as the Chief Inspector of Coal Mines for a period of ten years between 1989 and 1999. However, there is no reason whatever to strike out the medical panel application made by the worker in an attempt to obtain a medical panel certificate that binds both him and BHP Billiton on the question of the quantum and causation of his deafness. By causation of his deafness I mean that the medical panel will again certify whether the plaintiff has any other form of hearing loss or deafness which does not fall within the diagnosis of "boilermakers deafness or deafness of a similar origin".
For those reasons, the plaintiff's summons is dismissed. I order the plaintiff to pay the defendant's costs.
HIS HONOUR: I assume, Mr Best, that when you get around to commencing proceedings against BHP you will also join McKensey Mining Services. I mean, there would be no greater argument for a Bullock and Sanderson order than that summons, and that will bring the whole thing to a head.
STANTON: Yes, I'll pass that on to Mr McDonald, your Honour.
HIS HONOUR: That's what you would want done?
BEST: We're happy for him to commence proceedings against his own company and leave us out of it. That's what we really want, your Honour.
HIS HONOUR: I know that, but as a midway position you'd want both joined rather than just you?
BEST: Not if it means we pay, your Honour. It's a matter for the plaintiff. We can have that argument some other time perhaps.
HIS HONOUR: I don't like your chances on that argument. And to make it even more fun you could also join the State of New South Wales. What does 14.1% sound in monetary terms as?
BEST: The previous application sought, I think, about $12,000.
HIS HONOUR: I'll just have a look - the other thing everyone has to bear in mind is the cost - $12,125.29 and there's also a claim for hearing aids of $5,385 so we're not looking at a great deal of money. You don't want to run up heaps and heaps of costs.
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Decision last updated: 08 December 2014
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