Irvine v Abb Power Transmission Pty Ltd [1993] NSWCC 38; (1993) 9 NSWCCR 682 (24 November 1993)

[1993] NSWCC 38; (1993) 9 NSWCCR 682 (13309/92)

IRVINE v. ABB POWER TRANSMISSION PTY LTD

Compensation Court of New South Wales: Geraghty J

24 November 1993

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS FOR SPECIFIC INJURIES - FOR WHAT INJURIES PAYABLE - INJURY BEFORE AND AFTER ACT - WHEN INJURY OCCURRING - INJURY SUSTAINED PRIOR TO ACT - SUBSEQUENT DETERIORATION OF WORKER'S CONDITION AFTER ACT - OPERATION OF TRANSITIONAL PROVISIONS - WORKERS COMPENSATION ACT 1987, SCHEDULE 6, PART 6, CLAUSES 1 AND 6

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS FOR SPECIFIC INJURIES - AMOUNT AWARDED - ASSESSMENT GENERALLY - INJURY BEFORE AND AFTER COMMENCEMENT OF ACT - OPERATION OF TRANSITIONAL PROVISIONS - LIMB INJURIES - PAIN AND SUFFERING - WORKERS COMPENSATION ACT 1987, SCHEDULE 6, PART 6, CLAUSES 1, 2 AND 6

G.M. Hoeben, for the applicant

J.W. Dodd, for Insurers Guarantee Fund

G. Levick, for FAI Traders

P. Evans, for FAI Workers Compensation

Cur adv vult

GERAGHTY J:

THE APPLICANT'S EVIDENCE

Robert Irvine was a process worker with the respondent. He was injured on 4 November 1983 when a steel splinter entered his right index finger, resulting in a number of amputations. On 21 March 1985 he was paid, pursuant to section 16 of the 1926 Act, an amount equivalent to 100 per cent permanent loss of efficient use of the index right finger. A subsequent removal of the knuckle at the base of the right index finger occurred in February 1988. This resulted in a substantial incursion into the applicant's right hand.

From 1984 until his duties were changed in April 1993 Mr Irvine carried out work, firstly as a mechanic, later as a crane driver. During that period he developed a carpel tunnel and an over-use syndrome of the right hand and arm, with pain in the wrist, up the right arm, in the elbow and right shoulder. By favouring his right hand in carrying out his duties, he developed pain in his left arm but no claim is made here in respect of that.

Mr Irvine's claim is for permanent loss of efficient use of the right arm at or above the elbow, and below the elbow, pursuant to section 66 and, if appropriate, a lump sum payment for pain and suffering, pursuant to section 67.

No evidence was tendered or called by the three insurers given leave to appear in the interests of the insurers on risk and to represent, for the relevant periods, the respondent employer. Mr Dodd appeared for the Insurers' Guarantee Fund for all relevant periods before 30 November 1983, Mr Levick for FAI Traders, for the period 30 November 1983 to 30 November 1987, thereby covering a substantial period before July 1987 and a small period of a number of months for the period of the new Act. Mr Evans appeared on behalf of FAI Workers Compensation for all relevant periods after 30 November 1987.

The applicant said he injured his right index finger on 4 November 1983. Within approximately eight months, on 30 July 1984, Dr Peter Giblin amputated the first joint of that finger. Within a few weeks, on 3 August 1984, a further amputation was done of the whole of the index finger, by the same surgeon.

Between 1984 and 1986, Mr Irvine carried out his normal duties experiencing problems with his grip. Those normal duties involved using air guns, cleaning, using hammers and various spanners, carrying out process work, using tools to assemble car components for car transformers.

Mr Irvine developed a lump in his right hand, restricting its movement. This was removed by Dr Peter Giblin in May 1986. In March 1985 he was paid a section 16 lump sum before that lump was removed. Before October 1986 and while carrying out his normal duties as a process worker, he developed pain in his right elbow, right arm, right wrist. These were described as shooting pains. Mr Irvine was unable to cope with his work.

In October 1986 the applicant's duties were changed. He began to operate two cranes. This change in his duties resulted from the applicant asking to be transferred because he was unable to cope with his earlier duties. He found it impossible as a Second Class machinist to use the tools of his trade. He had difficulties with the spanners for example, tightening and untightening nuts and bolts. He could not use the air gun. He was unable to wrap electrical tape tightly enough around cable. He changed in October 1986 to operating two types of cranes:

1. a 200 ton crane, which he was required to operate about 70 feet above the ground. He said he found it difficult gripping the steps to climb up into the crane-cabin. He had problems going up and down the steps although he could drive that particular crane without any problem.

2. The second crane was a pendent crane which he often operated with his left hand, he said, because he did not have enough grip or strength in his right hand. He pressed the buttons by his thumb which he had to keep on the buttons at all times. He usually did this with his right hand, but when his right hand grew tired, he changed to his left hand. He said there was quite a bit of pressure in the work and he could only do the operation with his right hand for short periods without experiencing pain.

Mr Irvine attempted to operate the crane with his fingers but without success. He was restricted to using the thumb of his right hand, and when his right hand and arm became sore, or when his right shoulder became painful, he changed to operate the crane with his left hand until the pain eased. Over this period he found the knuckle of his right hand was getting tender. He did not have a proper grip and was required to use his hand in a different manner.

In 1987 the applicant began to experience pins and needles in his hands, pain in his arm, further pain in his wrist. His thumb and middle finger were especially bad. He also experienced numbness in his hand and wrist.

In November 1987 Mr Irvine attended the hand clinic at Sydney Hospital. He came under the care of Dr Isaacs. On 17 February 1988 the knuckle beneath the index finger of his right hand was removed. After the removal of that knuckle, he said he had no strength in his grip and pain in his arm and wrist. He experienced sharp shooting pain, up the back of his arm to his elbow, pain in his hand and thumb, and right wrist.

The applicant returned to crane driving five or six weeks after the removal of the knuckle in February 1988. The pain began again almost straight away. He kept working until early 1988 but with increasing problems. In 1989 he approached the employer on as many as approximately five occasions for different and more suitable duties. His duties were not changed. Some time after 1989 the ownership of the company changed and the applicant said he considered it wiser, in order to preserve his position, not to make further approaches for different duties.

In 1989 Mr Irvine was experiencing pain in his right arm and shoulder. He said he kept losing control of his car when he was driving: he had a spinner installed on the steering wheel. The pain grew worse in 1990 and he was attending Dr Isaacs again. He had pain in his right hand, elbow, to his shoulder, and was using his left hand more and more in order to rest his right hand at work.

The pain really became bad in the shoulder and elbow in 1991. It was then the company was taken over and then he ceased asking for different duties. He described driving the crane in 1992 as "terrible". He said he kept using his left arm because of the problem he was having with his right and he began developing problems in his left arm. He was taking pain-killers and receiving physiotherapy. He said he went to a physiotherapist as many as 20 times in about April or May 1993 and was attending Dr Isaacs, as well as Dr Collins, from 1991.

Mr Irvine's duties were changed in April 1993. He is now a despatch clerk, coping well with his new duties which are not putting too much strain on his right arm condition. He has only to drive a crane in emergencies, and then only the 200 ton one. Such emergencies are rare.

Mr Irvine complained his hand and arm problems have interfered with his sporting activity, particularly his golf, tennis, squash and cricket. I have no doubt most of those problems result from the amputation of the finger of his right hand and the amputation of the knuckle, rather than from any condition developed since that time. He said he cannot hold a tennis or squash racquet because he does not have a proper grip and because he has pain in his hand, wrist, arm and shoulder. He has difficulty doing gardening now. He was, at one stage, a keen gardener, involved in designing gardens and constructing landscapes. He does very little now. He stopped in about 1983. He has difficulty driving his car. His arm gets sore and tired even driving to work. He was, at one stage, a member of the local bush fire brigade but his association was ceased in 1986 - all pre-dating the new Act. He said he attempts to paint his house but he has difficulty holding the brush in his right hand so he loses heart quickly. That too, seems to be a result of the injury pre-dating the new Act.

THE MEDICAL EVIDENCE

Dr Isaacs was the principal treating specialist. His reports are Exhibit B. In the report of 4 September 1990 he records a review of Mr Irvine on 16 June 1988. He was complaining of aching in the right hand, particularly after prolonged gripping. On occasions the aching pain radiated up the forearm. Dr Isaacs observed "the patient's grip strength remained significantly diminished" noticing Mr Irvine was unable to sustain a strong grip.

Dr Isaacs reviewed the applicant again on 16 August 1988. He continued to complain of problems in the use of his right hand, mainly due to weakness in grip, and of pain radiating up the extensor aspect of his forearm when he was attempting a repetitive or heavy task. A further review on 8 November 1988 - the applicant was complaining of aching in the palm of the hand with added discomfort and numbness in the fingers if he used his hand excessively. Dr Isaacs examined Mr Irvine and observed sustained wrist flexion produced paraesthesia in the median nerve distribution consistent with an element of median nerve compression within the carpel tunnel.

A further review occurred on 24 January 1989. The applicant told doctor he had been on his annual holidays and when he returned to work the previous week, he had experienced some aggravation of pain in the flexor aspect of the right forearm and wrist.

A review on 28 March 1989 - the doctor again noted sustained wrist flexion produced median nerve paraesthesia. He diagnosed a carpel tunnel syndrome.

A further review on 2 March 1989, when Mr Irvine told Dr Isaacs he was unable to persuade his employer to provide modified duties. This tends to confirm the evidence given by the applicant.

A further review occurred on 15 March 1990. He had had a three month history of painful swelling in the ulnar aspect of the right wrist which he felt had been aggravated by his work duties. He said this condition had commenced just before the Easter break and after five days away from work, the swelling had settled. From such a history it would seem the work duties did have some contribution to make to the condition of the applicant on 15 May 1990 or thereabouts.

Doctor considered, in his report of 4 September 1990, Mr Irvine was:

"...a genuine patient and would have difficulty in performing sustained heavy or highly repetitive tasks using his upper extremities."

He assessed the loss of efficient use of the right upper extremity at 25 per cent.

In his report of 1 June 1993, Dr Isaacs considered that the applicant had a brachial plexitis and "tennis elbow" type syndrome in his right upper extremity.

Dr Isaacs produced a further report of 8 July 1993. He assessed the permanent loss of efficient use of the right arm below the elbow, at 20 per cent and above the elbow, at 5 per cent, which was later amended by doctor to an assessment of 10 per cent. In the same report the doctor thought the applicant had possible axillary plexitis and lateral epicondylitis, and those conditions related to an assessment at or above the elbow.

A final report was produced by Dr Isaacs in October 1993. He reported Mr Irvine first began to complain of proximal pain in his right upper extremity about mid-1988. He described this as pain radiating up the extensor aspect of his arm and considered it was due to altered patterns of use of the right hand associated with his grip strength. He said the majority of the applicant's discomfort seemed to be brought on by his work tasks as a crane driver, though there was some mention made of attempting to renovate his property, including digging a drain system. None of this was explored by any of counsel for the respondent.

Dr Isaacs said the applicant first developed definite carpel tunnel syndrome signs at the end of 1988. At that time his right arm pain was still more consistent with altered patterns of use of the arm and spasm of forearm musculature.

By Easter 1990 the applicant was complaining of painful swelling to the ulnar aspect of the left wrist. I leave that to one side as no claim is made.

Mr Irvine was finally examined by Dr Isaacs in April 1993. The doctor's findings revealed, for the first time, evidence of an axillary plexitis as well as more chronic elbow pain, loosely described as "tennis elbow-type syndrome". Doctor said these conditions were a consequence of the applicant's altered pattern of use of his hand secondary to the loss of grip strength followed by his transmetacarpel amputation.

Dr Collins examined the applicant in October 1991 and assessed the permanent loss of the right arm below the elbow, at 20 per cent. In his report of 9 July 1993, Dr Collins deals with his examination of the applicant on 11 October 1991. He said he felt that the applicant's disability was at or below the elbow:

"...but I could not exclude problems above the elbow consistent with brachial plexitis as described by Dr Isaacs."

Mr Irvine was again examined by Dr Collins on 3 September 1993. He considered the applicant's prognosis was not good. He believed Mr Irvine would continue to have persistent pain in his right upper limbs and also, from time to time, in his right axilla. He assessed permanent loss of the right arm, at or above the elbow, at 12 per cent, and below the elbow, at 20 per cent.

I also have the benefit of an assessment of a medical panel, putting permanent loss of use of the right arm, at or above the elbow, at 25 per cent.

THE QUESTION OF CAUSATION

The principal question which confronts this Court is one of causation.

The applicant clearly considered there were two causes of his present condition - the incident which occurred on 4 November 1983 resulting in the amputation of his index finger and the knuckle of his right hand, and secondly the nature and conditions of his employment, as a mechanic and as a crane driver. The opinion of the applicant is echoed in the medical reports of Dr Collins and Dr Isaacs.

In his report of 11 October 1991 Dr Collins considered the efforts the applicant made to carry out his work with his right hand, minus the index finger, had led to stress on the hand and forearm and these stresses, in turn, led to the development of a carpel tunnel syndrome affecting the median nerve, as well as irritation to the ulnar nerve.

Dr Collins repeats the tenor of that opinion in his report of September 1993:

"The patient's condition in my opinion is the result of the accident of 4 November 1983. I believe that the efforts he made to carry out his work with his right hand minus the index finger have led to an over-use syndrome affecting the plexor muscles and tendons of the forearm and also to development of irritation to the right ulnar nerve. He has an over-use syndrome affecting his pectoral muscles in the region of the right axilla."

A similar opinion as to causation is provided by Dr Isaacs. In his report of 6 December 1990, he said the applicant's persistent loss of grip strength in the right hand was due to a combination of loss of index finger and more proximal discomfort in the carpel tunnel. He said that because of this, the applicant would be unable to perform highly repetitive and heavy manual tasks. It was Dr Isaacs' belief that if Mr Irvine had not required an amputation of his index finger (which was a direct result of the injury to that index finger), he would not have developed the more proximal symptoms of which carpel tunnel syndrome was one manifestation. He then said:

"I cannot of course say that the general nature and conditions of his employment since the time of the initial injury are not a contributing factor in the maintenance of his more proximal symptoms."

In his report of 23 July 1991, Dr Isaacs said he believed Mr Irvine's more proximal symptoms were as a result of a continuation of his attempt to overcome the permanent loss of grip strength in his right hand:

"This has led to an altered pattern of use of the extremity and I have advised him on performing regular muscle stretches to overcome that spasm."

In his report of 1 June 1993, Dr Isaacs considered the tennis elbow and brachial plexitis was, in his opinion, a result of the altered pattern of the use of the applicant's hand, secondary to the loss of grip strength following his transmetacarpel amputation and possibly because of secondary carpel tunnel syndrome, for which he was treated conservatively.

These statements leave me in little doubt the medical opinion is a reflection in the applicant's own opinion, namely, the present condition of the applicant is a direct result of the injury of 4 November 1983 and consequent amputations, as well as of the nature and conditions of his employment between 1984 and April 1993.

Three counsel for the employer repeated each other's submissions, forcefully, suggesting that anyone with any ability to read the medical reports, with a modicum of commonsense, could only conclude the applicant's present condition was the result of 4 November 1983 injury. The splinter and its subsequent operations was, according to them, the sole cause of the applicant's losses and incapacity. None of them could entertain, at least in their submissions and in lengthy discussions with myself, any other explanation.

Mustering all the commonsense at my disposal and drawing on all my resources, mindful of the natural wish not to appear foolish or to "sin against the light", I cannot agree with them. Counsel would have me accept that the work which the applicant continued to do over a period of years, causing him pain, had nothing to do with the development of symptoms in his right hand, arm or shoulder - that the carpel tunnel, the tennis elbow, the nerve compression, were all caused entirely by the incident of 4 November. It was almost as if, had the applicant put his hand in his pocket for a number of years, his arm would have emerged with all its present problems.

I consider those submissions to be risible. I consider they offend against commonsense. However, like all simple propositions, commonsense is often in the eye of the beholder, or as long as the chancellor's foot. The question of causation is a philosophical problem which has occupied philosophers, scientists and lawyers for many years. There are many positions on the spectrum between, on the one hand - "This is definitely caused by that" - as clearly as night follows day though, of course, night is not caused by day nor vice versa, though the chicken is caused by the egg and the egg by the chicken and, on the other hand - "This is definitely not caused by that".

On that spectrum are all kinds of possibilities and probabilities, almost certainties and not-knowns. Philosophers deal with the question of causation by using different notions and axioms to wrestle with the concept. They speak, for example, of the concept of principal cause, proximate cause, instrumental causation, contributory cause, efficacious, exemplary and final causes. One often hears the aphorism "Post hoc sed non propter hoc". Some philosophers deal in "conditions sine quibus non" and other philosophers in "necessary conditions precedent".

The law also and often deals with the question of cause. It is a legal concept, more fluid, less defined than its philosophical brother. The law uses various ways of coming to terms with the question of causation. There is the test of "too remoteness" and the "but for" test. The test of reasonable foreseeability: of "far-fetched or fanciful". Lawyers speak more loosely of contributory factors or significant contributory factors.

I have been assisted in my ruminations by many cases, particularly by a brief description of Murphy J, in TUBEMAKERS OF AUSTRALIA LTD V. FERNANDEZ (1976) 10 ALR 303. His Honour deals with the cause of the Dupuytren's contractures and the evidence necessary to establish the relationship of cause and effect.

Murphy J said:

"If it is common knowledge that a relationship of cause and effect may exist between certain facts or events, a tribunal of fact does not need expert evidence to enable it to find this relationship in a particular case. (ADELAIDE STEVEDORING CO LTD V. FORST [1940] HCA 45; (1940) 64 CLR 538; [1941] ALR 212; PURKESS V. CRITTENDEN [1965] HCA 34; (1965) 114 CLR 164 AT 171; [1965] HCA 34; [1966] ALR 98 AT 102; NICOLIA V. COMMISSIONER FOR RAILWAYS (NSW) (1970) 45 ALJR 465; [1972] ALR 185). An observed sequence of events may therefore lead without expert evidence to a rebuttable presumption of fact, even on medical or other scientific subjects.

Although the expressions 'common experience' or 'common knowledge' are often used, they are intended to embrace or to be used as part of what Rich A-CJ referred to in FORST's case (64 CLR at 563; [1941] ALR at 213) as a course of reasoning which combines common sense with application of logic to the facts. Where common knowledge and this course of reasoning do not enable the tribunal to find the relationship, expert evidence is necessary. If expert evidence establishes that the relationship is possible (that is, it is a reasonable hypothesis or one consistent with scientific knowledge) the proof to the required standard (civil or criminal) that the relationship existed in the case under consideration may then be achieved by further evidence (expert or non-expert)."

FERNANDEZ is a typically economic judgment of Murphy J. It is not one of his 22 per cent of minority judgments.

There has been a recent renaissance of "Murphy studies", encouraged by that Erasmian figure of the Court of Appeal, Kirby P. He has appeared recently on the mass media, speaking of revived Murphy studies - on the mass media, so reviled and abominated by some of his companions on the Bench.

This judgment of Murphy J is not one of his forward-looking minority judgments which were so unappreciated at the time of delivery but which are gradually gaining acceptance and influence. It is part of the majority decision and in spirit and content, harks back to Aristotle and his Metaphysics. It forms a tiny part of the tradition established by philosophical and legal thinkers, initiated by Aristotle, preserved by Boethius in the sixth century; conserved for the West by such Arabic scholars as Averroes of Cordoba and Avicluna, and expounded by medieval thinkers such as Albertus Magnus and Bonaventure, Peter Abelard, Peter Lombard, Siger of Bramant, and Thomas Aquinas. The concepts and principles developed by those scholars down the century have been reflected on, varied, refined in recent times by many contemporary philosophers and lawyers. Murphy J finds himself in splendid company in his reflections on causation. In reaffirming the value of common experience and common knowledge, he simply echoes the succinct principle of Aquinas "Per effectum procedimus ad cognitionem causae".

Murphy J has not been alone among judicial officers in developing various aspects of the law on causation. In BARNES V. HAY (1988) 12 NSWLR 337, the causal relationship between negligent legal advice and a tenant's loss arising out of harassment by a lessor, was considered by the Court. Hope and Priestley JJA, considered the resolution of the question of causation was always a question of judgment. They said the application of a particular test such as the "but for" test, requires the exercise of judgment. In ALEXANDER V. CAMBRIDGE CREDIT CORPORATION LTD (1987) 9 NSWLR 310 the application of the "but for" test was applied with different results by their Honours Glass and McHugh JJA. Hope and Priestley JJA concluded in BARNES V. HAY (at 339) the test as to whether a matter was causally linked with another was one of "efficient connection".

In his judgment, Mahoney JA develops the question of causation at some length and I found his considerations (at 355 and ff) to be of considerable assistance. I will refrain from quoting them here.

The question was also considered by the High Court in ADELAIDE STEVEDORING CO LTD V. FORST [1940] HCA 45; (1940) 64 CLR 538. Dixon J (at 568) considered a causal link was established if an event or series of events which "contribute in any material degree" to the formation of the condition was established.

Starke J (at 565) stated it was settled law that if work "contributed" to death, the death results from work within the meaning of the Compensation Act. He quoted several English and Australian cases. Starke J, however, considered the question of causation was also always one of fact.

McTiernan J (at 571) considered anything which accelerated or materially contributed to something else could be concluded to be the result of, or causally linked to, it.

I am required under the Act to consider whether the applicant is entitled to an award pursuant to section 66. That section provides that a worker who has suffered the loss of a thing mentioned in the Table to the Division "as the result of an injury" is entitled to recover some lump sum compensation. "Injury" is defined in section 4 in very similar terms. An injury means "personal injury arising out of or in the course of employment".

I, therefore, am required to determine whether the applicant has suffered a loss as the result of an injury, that injury arising out of or in the course of employment. I consider the true cause of the applicant's present loss is twofold: firstly, the injury to his arm caused by and resulting from the nature and conditions of his employment from 1984 to April 1993; and secondly, the original injury which in itself resulted in a loss, but not the same loss nor the same degree of loss as he now experiences. I consider both those causes are in any sense a cause of the loss, or "conditions sine quibus", or in any sense necessary conditions precedent, or again in any sense, significant contributing factors.

ASSESSMENT

Schedule 6, Part 6, clause 1, provides that, subject to the Schedule, Division 4 of Part 3 of the Act applies whether the injury was received before or after the commencement of the Division.

Division 4, Part 3, deals with compensation inter alia under sections 66 and 67.

Clause 4 of Part 6 of Schedule 6 provides that an amount of compensation payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Part 3 (not being an occupational disease within the meaning of section 71):

"...shall be determined in accordance with section 16 of the former Act instead of Division 4 of Part 3 of this Act IF THE LOSS RESULTED FROM AN INJURY RECEIVED BEFORE COMMENCEMENT OF THAT DIVISION." (emphasis added)

I believe the relevant clause in the present circumstances is clause 6 headed "Interpretation".

"If a loss mentioned in the Table to Division 4 of Part 3 of this Act resulted BOTH from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement." (emphasis added)

I consider the loss is mentioned in the Table of Division 4 of Part 3, namely, the loss at or above the elbow of the right arm, and below the elbow. I consider the loss has resulted both from an injury received before the commencement of the Division, and an injury received after that commencement. Therefore, for the purposes of determining the amount of the compensation payable in accordance with this Part - and I consider, only for the purposes of determining the amount - the loss is to be treated as having resulted from an injury received after the commencement and, therefore, comes within the provisions of section 66 and the other relevant provisions of the Workers Compensation Act 1987.

The various assessments provided by doctors on behalf of the applicant are:

1. 20 per cent below the elbow, by Dr Isaacs and 10 per cent at or above the elbow;

2. 20 per cent below the elbow by Dr Collins, and 12 per cent above; and

3. a medical panel of 25 per cent at or above the elbow.

It seems to me, because of the difference in assessment between Dr Isaacs and Dr Collins on the one hand, and the Medical Panel on the other, and because of the treating relationship Dr Isaacs has with the applicant, as well as his unquestioned expertise, the Medical Panel in making of 25 per cent at or above the elbow means that to include the applicant's condition below the elbow.

I assess the loss at or above the elbow at 12 per cent, and below-the-elbow loss at 20 per cent. I note the assessment below the elbow, being 20 per cent, includes any hand assessment, together with the injuries arising as a result of permanent loss caused by the pain, and the pins and needles in the wrist and lower arm, i.e. the carpel tunnel problem.

SECTION 67

Schedule 6, Part 6, clause 2, excludes any pain and suffering experienced by the applicant prior to the coming into force of the Workers Compensation Act 1987. Whatever about the operation of section 66 and losses that bridge the old and new Acts, there is no doubt clause 1 of Part 6 does not apply to section 67 of the 1987 Act. The section applies only to pain and suffering in respect of injuries received after the commencement of Division 4 of Part 3 of this Act.

Therefore, I am required to make an award, if appropriate, for pain and suffering, only in respect of injuries which have been received after July 1987, to date and continuing. I note that the maximum amount, as at April 1992, was $64,650.

APPORTIONMENT

Section 22 deals with the question of apportionment between employers, or between injuries, or insurers. I am informed there has been no agreement between the various insurers and, therefore, I am not bound by section 22(3).

No submissions have been made to me on the question of apportionment. I conclude that those submissions were not made, simply because each one of the respondents fully expected simply to escape any liability.

Section 22(8) provides that the apportionment provisions of the Act applies to any liability arising, both before and after the commencement of the Act. Therefore, the apportionment provisions will relate to the Insurers' Guarantee Fund, represented by Mr Dodd and a large part of the FAI Traders, represented by Mr Levick.

I propose to apportion liability between the three insurers on the following basis.

AS TO SECTION 66

Firstly, the Insurers Guarantee Fund was on risk to 30 November 1983 and, therefore, during the period when the first injury occurred. That injury was, in my opinion, a major event, leading to several operations and to the necessity of the applicant changing his grip and so, to a large extent, to the development of symptoms in his right arm, below the elbow and at and above the elbow. I also take into account that their period of risk was very limited (a matter of a number of months) during which no complaints were made in relation to the development of the pains and pins and needles or the paraesthesia in the right arm.

I consider the period of FAI Traders' exposure was a substantial period, from 30 November 1983 to 30 November 1987, bridging both the old and new Acts. It was a period of four years during which both the old duties as a mechanic and the new duties as a crane driver were carried out. Also during the period, the applicant suffered the removal of his knuckle.

I consider FAI Workers Compensation insurer was also on risk for a substantial period - four years and five months, during which the applicant was carrying out duties as a crane driver. He was also making applications which were not met, for a change of duties because of the difficulties he was experiencing.

Doing the best I can, I apportion the liability between these three insurers on the following basis:

Insurers Guarantee Fund 35 per cent

FAI Traders 30 per cent

FAI Workers Compensation 35 per cent.

AS TO SECTION 67

FAI Traders was on risk but for a number of months - July to November 1987. The bulk of the risk was borne by FAI Workers Compensation - from 1 December 1987 - April 1993 - four years and five months. Doing the best I can I apportion the section 67 award on the following basis - FAI Traders 5 per cent, FAI Workers Compensation 95 per cent.

I make the following findings:

1. The applicant sustained injury to his right dominant arm as the result of the nature and conditions of his employment from 1984 to April 1993, as well as from an injury he sustained on 4 November 1983.

2. The permanent loss of use of the applicant's right arm, at or above the elbow and below the elbow, is the result of the incident of 4 November 1983, and from the nature and conditions of his employment as a mechanic, and as a crane driver, from 1984 to April 1993.

3. The permanent loss of efficient use of the right arm, at or above the elbow, I assess at 12 per cent, and below the elbow, at 20 per cent.

I make an award in favour of the applicant worker in the sum of $31,783.20 [being 12 per cent of $103,360; that is, $12,403.20 - and 20 per cent of $96,900, being $19,380].

Having regard to the severity of the permanent loss, and the maximum amount to be paid in an extreme case, and having regard to the pain and suffering sustained by the applicant since July 1987, I award, pursuant to section 67, the sum of $12,500. I allow $6,000 in respect of past pain and suffering.

I apportion, pursuant to section 22, liability under section 66, between the Insurers Guarantee Fund, FAI Traders and FAI Workers Compensation at 35 per cent, 30 per cent and 35 per cent respectively.

I apportion the section 67 component between FAI Traders and FAI Workers Compensation on the basis of 5 per cent FAI Traders, and 95 per cent FAI Workers Compensation.

I order interest to be paid on the section 66 award from 31 April 1993 to date, at the rate of 6 per cent, and on the section 67 award which relates to the past, from the same date, at the rate of 3 per cent.

I order that the respondent pay the applicant's costs.

There will be no cost to the applicant of 7 October 1992.

I apportion costs on the basis of 1/3: 1/3: 1/3.

I certify an advice on evidence and one conference in the sum of $150, but no second conference.

I direct that the transcript of my judgment be taken out as soon as possible and I grant a stay of proceedings for 28 days herefrom.

Solicitors for the applicant: Taylor & Scott

Solicitors for Insurers Guarantee Fund: Hunt & Hunt

Solicitors for FAI Traders: Vandervords

Solicitors for FAI Workers Compensation: Edwards Johnstone Sullivan