Liddell Coal Operations Pty Ltd v Hector

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Liddell Coal Operations Pty Limited v Hector [2021] NSWCA 47

Hearing dates:

16 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Before:

Basten JA at [1]
Gleeson JA at [2]
McCallum JA at [57]

Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the respondent’s costs.

Catchwords:

WORKERS COMPENSATION – coal miners – whether employment was a contributing factor to aggravation, acceleration, exacerbation or deterioration of a disease – where worker suffered from a degenerative condition of osteoarthritis to his right knee – whether primary judge erred in point of law in finding work injury – Workers Compensation Act 1987 (NSW), s 4(b)(ii)

Legislation Cited:

District Court Act 1973 (NSW), s 142N

Workers Compensation Act 1987 (NSW), ss 4, 60, 66, 67

Cases Cited:

Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697; [2000] NSWCA 116

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Goodwin v Commissioner of Police [2010] NSWCA 239

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Category:

Principal judgment

Parties:

Liddell Coal Operations Pty Limited (Appellant)
Andrew Clifton Hector (Respondent)

Representation:

Counsel:
L King SC / S McMahon (Appellant)
B Dooley SC / P O’Rourke (Respondent)

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…