Llewellyn v Casino Municipal Council [1995] NSWCC 8; (1995) 11 NSWCCR 221 (17 March 1995)

[1995] NSWCC 8; (1995) 11 NSWCCR 221 (Matter No 8353/94)

Llewellyn v. Casino Municipal Council

Compensation Court of New South Wales: Armitage J

17 March 1995

For what injuries compensation payable - Employment risks-"Arising out of or in the course of employment" - Arising in the course of employment - Worker employed by council - Worker injured while participating in annual union picnic - Whether council "encouraged" worker's attendance at picnic - Council involvement - Workers Compensation Act 1987, section 4

Words, phrases and maxims - "in the course of employment" - Workers Compensation Act 1987, section 4

F.D.M. Curran, for the applicant

J.H. Lichtenberger, for the respondent

Ex tempore

ARMITAGE J: This is an application for compensation by Trevor James Llewellyn against Casino Municipal Council in which he claims weekly payments of compensation from 4 December 1992 until 16 July 1993, apparently on the basis of total incapacity and the sum of $5,148 under section 66 for 5 per cent permanent loss of use of the right arm at or above the elbow together with interest on that sum, pursuant to section 19 of the Compensation Court Act 1984.

The applicant was given leave without objection from the respondent at the commencement of proceedings to amend his application for determination to incorporate a claim for the above lump sum.

The injury alleged by the applicant in the application for determination is that on 4 December 1992, at Evans Head in New South Wales, he suffered injury in a running race whilst at a union picnic day and the nature of injury in the application is described as one to the right shoulder and arm.

At the commencement of proceedings, I was informed by Mr Lichtenberger who appeared for the respondent, that the issues in the matter were firstly, whether the applicant had suffered an injury arising out of or in the course of his employment and secondly, the quantum of any weekly payments which might be awarded to him and thirdly the existence and quantum of any section 66 entitlement in the applicant.

I have chosen to deliver an ex tempore judgment, despite some difficult legal issues, to avoid losing certain factual impressions from the evidence.

The applicant's own evidence, briefly summarised (which in view of his demeanour and manner of answering questions, I accept as truthful and accurate), was as follows.

He said that after various labouring occupations he joined the respondent in 1969 as a grader driver. He continued in this occupation until the occurrence of the alleged injury on 4 December 1992. When he joined the council he also joined the Federated Municipal and Shire Council Employees Union (FMSCEU) and was a member at the time of the alleged injury. In 1992 he was a member of a committee which organised what was described as the "union picnic".

His injury occurred in the course of his participation in the picnic when he was involved in a running race and deviated suddenly to avoid a small child who ran into his path. He wrenched the child out of his path to avoid injury to the child and he said his "arm cracked" and identified the arm in question as being his right arm which I should add was non-dominant, as he gave evidence that he is left-handed.

So far as his participation in the picnic is concerned and as to the organisation of it, the applicant's own evidence was of little assistance to his case. It seemed to me that he was not the principal actor in the organisation of the picnic and all he could say was that he purchased a ticket for it and attended.

The organisation of the picnic was dealt with in much more detail by a lay witness, Stanley Bruce Yates, who was called in the applicant's case and it is appropriate to deal with his evidence now. Mr Yates said that he had been the Secretary of the Ballina Branch of the FMSCEU for the previous 10 years. In the course of that position he had what he described as a role in industrial relations with Casino Municipal Council and was accustomed to dealing with the Council Engineer, a Mr Gerry Bliss, in this respect. He gave evidence that he wrote to Mr Schippe, the Town Clerk of Casino Municipal Council, on 2 September 1992, to notify Council of the union's intention to organise the annual union picnic day on 4 December 1992 and his letter to Mr Schippe of that date was tendered in the applicant's case. Materially the letter, which I shall not quote in extenso, notifies the Council that the union proposed to hold the picnic day on the above-mentioned date and then adds these words:

"The Committee extends an invitation to the aldermen and their families to join us for the day.

We would be grateful if Council could make a donation towards the running costs incurred."

The letter then simply notified the Council that the levy of $7 per employee remained unchanged.

This letter was replied to by Mr Schippe, in a letter on a Council letterhead to Mr Yates of 7 October 1992, in which Mr Schippe simply notified Mr Yates that Council had resolved to approve the holding of the annual picnic on Friday 4 December 1992. The letter then contains these words:

"In response to your request for a donation towards the running expenses of the picnic, enclosed is Council's cheque in the sum of $50."

This letter was also tendered in the course of Mr Yates' evidence.

Also tendered in the course of Mr Yates' evidence was a copy of an advertisement published in the Richmond River Express Examiner on Tuesday 1 December 1992, the material parts of which read:

"Office Closure

Municipal Offices will be closed on Friday, 4 December 1992 (Council Picnic Day) and will reopen on Monday, 7 December 1992."

There then followed some telephone numbers which ratepayers might ring in the event of various emergencies, such as water main bursts.

Returning to Mr Yates' evidence, he said that he arranged with Mr Ross McKee, the paymaster of the Council, a payroll deduction for picnic fees for each member and for Mr McKee to place in employees' envelopes tickets for admission to the picnic to which they are

entitled, following the payroll deduction of the $7 fee to attend the picnic.

The obligations of employees in respect of the picnic may be described briefly. The picnic day is an entitlement under the Local Government (State) Award which was tendered in the applicant's case and is referred to in section 11 of the Award headed "holidays" in which Clause (i) refers to various usual holidays such as Christmas Day and Easter Monday and the like and Clause (ii) then reads:

"Union Picnic Day shall, for the purposes of this Award, be regarded as a holiday. The Picnic Day shall be as observed by the Union(s) in any area and shall be on such a day as is mutually agreed between Council and the Union(s).

Production of the butt of the picnic ticket issued to the employee shall be required for payment for the day to be made."

Tendered in the respondent's case as Exhibit 6 was a copy of the relevant rules of the FMSCEU, where under the heading "40 - Members Picnic" is contained the following:

"(1) The Executive or one or more Branches may organise an Annual Picnic of Members, and a Member attached to a Branch in an area or sphere as to which such a picnic is organised shall be liable to pay to the Union the price of the picnic tickets for such picnic.

(2) The price of a picnic ticket for a picnic of Members organised within the Sydney area shall be fixed by the Executive, and the price of a picnic ticket for a picnic of Members organised outside the Sydney Branch shall be fixed by the Committee of Management of the Branch concerned.

(3) The Member who fails, upon request, to pay the price of a picnic ticket fixed pursuant to this rule may be sued therefore.

(4) Non-members may purchase a picnic ticket, at a rate which is determined on appropriate commercial basis as determined from time to time by the Branch Committee of Management."

What appears to be clear to me from a combination of the text of the Award, as quoted above, and the union's rules as also quoted above, is that firstly the Council is obliged to allow the picnic to be held and to pay employees for the day on which they attend the picnic, provided they purchase a picnic ticket and regardless of whether or not they actually avail themselves of the opportunity to attend the picnic and secondly, that union members are in turn obliged, not by the employer, but by their membership of the union to purchase a picnic ticket but again, are not obliged by the union rules or for any

other reason, actually to attend the picnic once they have bought such a ticket.

It is unarguable, I think, that on that evidence without more, that is to say the evidence of the Award and the union rules relating to the picnic, the picnic day would not be in the course of the employment of the union members who attend the picnic.

In order to establish a sufficient connection with the employment to prove that his attendance at the picnic and his injury there was in the course of his employment, the applicant in this case had recourse to other evidence in relation to the matter.

The following matters emerged from the evidence of Mr Yates which were said by Mr Curran of counsel, who appeared for the applicant, in his address to be significant in this respect.

The first matter was that as described above, Mr Yates had the opportunity of dealing with Mr McKee, the paymaster for the Council, to organise for payment by members for picnic tickets and distribution of such tickets to members through the good offices of the Council. Mr Curran draws attention to the obvious maxim that the Council as a corporation acts through its employees and whether an action of an employee can be characterised as an action of the Council, of course, is a matter for inference from the circumstances in which the action took place as well as direct evidence. I shall come to that later.

Mr Curran also draws attention to Mr Yates' evidence that a tug-of-war rope was provided by the Council; although some evidence subsequently emerged that this took place by means of a conversation between a Mr George, who was a member of the union, and a storeman - this evidence was given without objection, although on one view it is hearsay.

Mr Yates said, in response to a clarificatory question put by myself, that he recalled the conversation between himself and Gerry Bliss, the Council Engineer, in which he, Mr Yates, had asked Mr Bliss for permission to use the rope for the tug of war and Mr Bliss had replied giving such permission. Mr Yates said that he could not be sure whether that conversation took place before or after 1992.

Mr Curran also draws attention to Mr Yates' evidence that following the invitation issued in the letter from Mr Yates to Council which I have quoted above, a number of persons attended the picnic in addition to union members. There were, said Mr Yates, Dr Vasan the Mayor, a Councillor Shirley Wheatley and also the Council Engineer, Gerry Bliss, the Deputy Engineer, Paul Rattnidge, and the Town Clerk, Mr Ross Schippe.

Mr Yates said that a Mr Darren Ward, a health inspector, was there as well as the abovementioned Ross McKee, although he later gave evidence that these persons were members of the FMSCEU, so that the inference is equally available that they were there simply in their character as union members. In the re-examination Mr Yates later remembered that in addition to the Mayor and Councillor Wheatley there were also present Councillor Bulmer and Councillor Fristan.

Mr Curran draws attention to Mr Yates' evidence that the total cost of the picnic was approximately $1,000, so that he says the Council's contribution of $50 towards the costs of the picnic represents approximately five per cent of the total cost, as indeed on the above basis it does.

Mr Curran in his address drew attention to the lack of evidence from either Mr McKee, who according to Mr Yates, was outside court on the first day of hearing or Mr Schippe, Mr Rattnidge or Mr Pearce. I shall come later to the possible significance of that lack of evidence.

The basis upon which the applicant puts his case, as I understand Mr Curran's argument, is that the circumstances set out above give rise to the proposition that the applicant's attendance at the picnic was in the course of the employment within the meaning of paragraph (a) of the definition of "injury" in the Workers Compensation Act 1987 (the Act), section 4. He also relies on section 9(2) of the Act, reading:

"Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment."

That of course assumes that the injury is one arising out of or in the course of the employment.

The subject of "union picnics" and such other activities as sporting contests said to be authorised or encouraged by employers is a vexed one and has been described many years ago by Sir Kenneth Street in Boolaroo Co-operative Society Ltd v. Black (1958) 32 WCR (NSW) 61 at 62 as a "wilderness of single instances".

I have considered what was said in that case as well as a number of others to which I was referred by the respondent's counsel, Mr Lichtenberger, namely Peterson v. Sydney Steel Co Pty Ltd [1964] 38 WCR (NSW) 97, Slibar v. M A Hodkinson & Co Ltd (1964) 38 WCR (NSW) 206, James v. Sydney University [1953] 27 WCR (NSW) 147, Shill v. Turella Industries Pty Ltd [1953] 27 WCR (NSW) 63, and Jackson v. City of Newcastle Gas & Coke Co Ltd [1936] 10 WCR (NSW) 287.

My own researches have also turned up a number of more recent decisions of this Court to which I drew counsel's attention and they were Spooner v. Wesgo Communications Pty Ltd, Compensation Court, No.11342/90, Burke J, 13 February 1992, unreported; Hair v. Wilson Computer Services Pty Ltd, Compensation Court, No.1122/87, McGrath CJ, 1 December 1988, unreported; Hodgkinson v. BP Coal Development (Australia) Pty Ltd, Compensation Court, No.1646/89, O'Meally J, 20 November 1990, unreported; Woods v. Consolidated Drive-in Theatres Corporation Pty Ltd, Compensation Court, No.4830/85, Moran J, 28 November 1986, unreported; Black v. New South Wales Fire Brigades [1994] NSWCC 18; (1994) 10 NSWCCR 322 and Kingston v. State Transit Authority, Compensation Court, No.7260/94, Truss J, 17 February 1995, unreported.

I have to confess that the vast majority of these cases appear to be sui generis and based on their own facts with, in some cases, little analysis of general legal principle no doubt because such matters were not argued or referred to by counsel then appearing.

I have, I confess, gained greatest assistance from Kingston (supra) and Black (Supra) because they follow, analyse and apply the recent decision of the High Court, in Hatzimanolis v. ANI Corporation Ltd (1992)173 CLR 473, to which I shall now come.

The principal test for determining what is in the course of a person's employment until Hatzimanolis, was undoubtedly what was said by Dixon J, as he then was, in Humphrey Earl Ltd v. Speechly [1951] HCA 75; (1951) 84 CLR 126 and to some extent what was said by the same Justice in Henderson v. Commissioner for Railways (WA) [1937] HCA 67; (1937) 58 CLR 281.

The joint judgment of Mason CJ and Deane, Dawson and McHugh JJ in Hatzimanolis at page 481 to 482 quotes, with approval, what was said by Deane J in Commonwealth v. Lyon (1979) 24 ALR 300 at 303 where his Honour said:

"That test [that is to say the Henderson and Speechly test propounded by Dixon J] is plainly a most useful aid as a criterion of inclusion in the concept of 'course of employment' (i.e. if the test is satisfied, the respondent was doing something in the course of his employment). If, however, the test is to be used as a criterion of exclusion (i.e. if the tests are not satisfied the respondent was not doing something in the course of his employment), it is, in my respectful view, necessary to place a gloss on the words 'in order to carry out his duties' which conclude the question formulated by Dixon J so that the prima facie intractability may be tempered to accord with the current views of what comes within the scope of employment which are more liberal than those prevalent at the time Dixon J formulated it (see per Dixon J Commonwealth v. Oliver (1962) 107 CLR 358)."

After quoting what was said by Deane J in Lyon (supra), Mason CJ, Deane, Dawson and McHugh JJ say this in Hatzimanolis at 482:

"Beneficial as the Henderson-Speechly test has proved to be in the law of workers compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something 'in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring in between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers."

Their Honours, of course, are referring to Commonwealth v. Oliver (supra) and Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529.

It is dangerous to quote small passages of judgments without reflecting on the context in which they occur but it illuminates the present issue, I think, to quote what Mason CJ and Deane, Dawson and McHugh JJ say at 484 after considering the preceding matters; it is as follows:

"Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way."

When I refer to the context in which that passage occurs, I refer to the fact that in Hatzimanolis, the Court was considering what has often been described in workers compensation law as a "camping case", where Mr Hatzimanolis was engaged in a recreational trip during his spare time on the weekend between working weeks, at a remote site in Western Australia, where he was living and where it was necessary for him to live, in order to carry out his duties for the employer.

Mr Hatzimanolis was in no way obliged by the terms of his employment to engage in the bus trip which was one "laid on" as it were by the employing company for employees, with the driver paid for by the company, purely for their recreation. Nevertheless the High Court considered that the vehicle trip and Mr Hatzimanolis' injuries which occurred on it were in the course of his employment essentially for the reason given in the last passage which I have quoted from the joint judgment. However, this passage is nevertheless illuminatory in my view of the present state of the general law relating to the course of the employment which, as Dixon J said in Commonwealth v. Oliver, has advanced somewhat over the years in response to what appears to be changing social concepts of what is involved in the course of the employment.

Hatzimanolis has been applied in two recent decisions of the New South Wales Court of Appeal: McCurry v. Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v. Lewis (1992) 8 NSWCCR 562.

Handley JA in McCurry at 559 and in Lewis at 567 comments that the results in those cases dictated as they were by Hatzimanolis may appear "anomalous or even bizarre" and one has a certain sympathy for that point of view but nevertheless it is for inferior courts to apply authority binding on them and Hatzimanolis is undoubtedly in this category so far as I am concerned.

With Truss J, in slightly different factual circumstances in Kingston (supra) which applied Hatzimanolis, I find it significant that the picnic received financial support from the Council to the tune of approximately five per cent of the total cost thereof by way of Council donation.

With Truss J - I refer to page 14 of her judgment in Kingston -I consider it significant that Council employees were permitted to obtain provisions from stores in the form of a rope for the tug-of-war contest.

I consider it also significant that Council's paymaster, Mr McKee assisted in the organisation of the picnic; firstly, by making deductions from the payroll in respect of the cost of employees' tickets (only of course after the employees had indicated their wish to purchase the ticket) and secondly, by placing the tickets in employees' pay packets.

It was put by Mr Curran that this process made it as easy as possible for employees to purchase tickets and therefore contributed to the success of the function in financial terms.

It was argued by Mr Curran, in my view rightly, that this tied in with the evidence that senior members of Council staff who were not members of the FMSCEU (namely Messrs Schippe, Bliss and Rattnidge, as well as the councillors), attended the function and that it was in the nature of things unlikely that such persons would wish to attend what was a fiasco because of insufficient attendance.

Mr McKee, as I have said, was not called by the respondent. It is true that it emerged from Mr Yates' evidence that Mr McKee himself was a member of the FMSCEU. Nevertheless it seemed to me that had Mr McKee's action been unauthorised and one carried out by him purely in his capacity as a union member, as urged by Mr Lichtenberger for the respondent, either Mr McKee or alternatively his superior, the Town Clerk, Mr Schippe, could have been called to say so. This did not occur.

I note also that none of the councillors described by Mr Yates as attending the function nor Messrs Schippe, Rattnidge or Bliss were called to give evidence as to why they attended the function, what they saw or did not see as the possible benefit to Council of the function, and whether or not they socialised or otherwise participated in convivial activities with union members at the function. It is fair to say that Mr Yates gave evidence that he did not actually observe the activities of any of these people at the function other than simply observing that they were there.

I do not, as I said in addresses, see much significance, necessarily, in the attendance of the councillors because it may be that they attended as much to curry favour with a large number of council employees assembled at one time who were, after all, ratepayers in a position to vote in council elections. However this explanation is not available to explain the attendance of Messrs Bliss, Rattnidge and Schippe.

It appears to me on considering all of the factors I have delineated above, and for that matter the whole of Mr Yates' evidence and to the extent that it assists, which is very little, that of the applicant, that a prima facie inference is available that, in the way described in the passage I have quoted from the joint judgment in Hatzimanolis (supra), the employer Council "encouraged" members of the Union to attend the function, even if they did not "induce" such attendance, and that it fulfilled Council's purposes to do so, in that it would promote friendly social intercourse between employees and Council's senior officers, which doubtless would enable the smooth running of industrial relations in the future at the Council.

That this was so is perhaps confirmed to some small extent by the advertisement in the Richmond River Express Examiner, which I have quoted above, which describes the picnic day as the "Council Picnic Day". It is true that that advertisement was simply indicating to the world at large and the municipality in particular that the Council would not be open on the picnic day for purpose of services to ratepayers except in emergencies, but taken together with the evidence about pay packet deductions and the provision of the tow rope and the attendance of senior officers of the council, if not councillors, at the picnic, the description of the picnic as the "Council Picnic Day", in the advertisement is one more indication, though small, in the many indicia which I consider allow an inference of "encouragement" on the Council's part of employees to attend the picnic day.

Accordingly, it is my view, this inference having been drawn, that the evidentiary onus to displace this prima facie inference passes to the respondent in the way described in Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164. That subject was most recently considered by Mahoney JA in Shoeys Pty Ltd v. Allan (1991) Aust Torts Reports 68,934 who said this at 68,939:

"It is current doctrine that, with the onus of proving a fact is upon the plaintiff, the fact alone that the defendant gives no evidence on the matter does not in principle supply the omission and that the only inference which can be drawn from the defendants reticence is 'that his evidence would not have helped him': Jones v. Dunkel [1959] HCA 8; [1959] 101 CLR 298. But that case did not decide that in those circumstances inferences can be drawn from the fact that the defendant has not given evidence on a matter on which the legal onus of proof lies upon the plaintiff. In Payne v. Parker [1976] 1 NSWLR 191 and Jones v. Sutherland Shire Council [1979] 2 NSWLR 206, the members of this Court considered the nature of factual inference and the circumstances in which inferences may be drawn from the failure of a party to give evidence in such circumstances.

In the Jones case, the issue was whether the plaintiffs could rely upon a consent for the use of land for the sale of cars. That consent might have been given to the male plaintiff's father. The father had not, in conversation, asserted that the consent had been given. And the question was whether, from his failure to assert a consent in the circumstances, the inference could be drawn that he had not received it. It was my opinion, at 227 et seq, that if a person is challenged with lack of consent and he has that consent he will be apt to say so and, accordingly, if he does not assert the consent the inference may be drawn that he does not have it. The test is, as was there suggested, whether ordinary human experience as to how people act supports that conclusion."

I find this passage, with respect, illuminating because I consider in this case that, having regard to the evidentiary onus of displacing the prima facie case raised by the applicant as described above, if Mr McKee was acting outside his authority as paymaster in making the pay deductions and placing the tickets in the pay envelopes as described above, he would be "apt to say so".

I consider that, if these actions were outside Mr McKee's authority, Mr Schippe, the Town Clerk, for whose absence there has been no explanation from the respondent, would be "apt to say so". Similarly if Messrs Schippe, Bliss and Rattnidge did not attend the function in their capacity as senior officers of the council in order to socialise with employees of the council and ensure its smooth running, they would be "apt to say so".

With Mahoney JA (with whose general approach Handley JA concurred) in Shoeys, I consider that I may more readily accept the prima facie inference emerging from the applicant's case here as to "encouragement" (to quote the High Court in Hatzimanolis) of employees' attendance at the picnic in the absence of any oral evidence from the respondent whatsoever and in particular from Messrs McKee, Bliss, Rattnidge and Schippe on the issues delineated above.

In these circumstances and not without some reluctance in view of the finely balanced nature of the facts in this case and the perhaps "bizarre" nature of the result (to quote Handley JA in McCurry and also in Lewis), I am of the view that Mr Llewellyn's injuries in the foot race described above were in the course of his employment within the meaning of the statute. The remainder of the evidence may be considered, thankfully, in much more brevity.

Dr White, in a report dated 20 June 1994 tendered in the applicant's case, described the applicant's attendance upon him and his referral to Dr Peter Milroy, a surgeon in Brisbane, with what apparently proved to be a narrowing or tear of the rotator cuff in the right shoulder.

Dr White provided the separate report dated 7 February 1995, which was tendered in the applicant' s case to the effect that Mr Llewellyn had lost 65 per cent of the efficient use of the right arm at or above the elbow as a result of the injury in question, although he did not say that it was permanent. I unhesitatingly reject this assessment because it seemed to me in the applicant's evidence that his complaints in relation to the shoulder were mild indeed and amounted to what he variously described as a twinge or ache in the shoulder, which was occasional only after performance of activities which involved such things as reaching behind his back or above his head with the affected limb.

Dr Milroy, in a report of 28 June 1994 which was tendered in the applicant's case, described his findings on examination and subsequent surgery in the form of the excision of the anterior acromion from above the right shoulder on 22 March 1993. He appeared to think, and rightly so in view of the applicant's evidence described above, that it was a reasonably successful result, but declined to give a percentage assessment in that report. He provided two further reports dated 24 January and 7 February 1995 and in the last mentioned report assessed a five per cent permanent loss of function of the right upper limb as a whole and that I think is the correct percentage in which to find the applicant's loss of use of the right arm at or above the elbow.

The respondent urges that the applicant's complaints were so slight as to dictate that no permanent loss of use of the limb be found but in applying the principles in Department of Public Works v. Morrow (1986) 5 NSWLR 166, it is necessary to look not only at findings on examination by doctors but at the applicant's description of the use of the arm or other affected limb on a day-by-day basis.

Accepting as I do the applicant's evidence as truthfully given and accepting such evidence on all relevant issues it follows that I accept him in relation to his minimal complaints of loss of function in the right arm as delineated above, particularly because he made many admissions against interest describing the minimal nature of his ongoing problem and that involves my accepting Dr Milroy's assessment against that of Dr Boyd Leigh provided in reports which were tendered in the respondent's case, which is that there is no loss of use of the arm at all.

Passing to the question of weekly payments of compensation, there was little contest because Mr Lichtenberger indicated that in the event of the applicant succeeding on the main issue in the case, which was course of employment, he was entitled to an award of compensation, either for total incapacity or for the maximum rate under section 40 for partial incapacity for the entire period of his time off work.

I am satisfied on the description of the applicant's state during and after the surgery performed by Dr Milroy in that doctor's reports and on Dr White's reports that the applicant was, in fact, totally incapacitated for the period claimed, although some adjustment is needed for the applicant returned to work for a brief period during the period of incapacity claimed in the application for determination and that will be reflected in the award which I make.

Findings

I therefore make the following findings.

1. Injury to applicant in the course of his employment with the respondent on 4 December 1992.

2. Resulting from such injury, applicant totally incapacitated from 4 December 1992 to 26 January 1993 and from 5 February 1993 to 22 February 1993 and from 19 March 1993 to 17 May 1993.

3. Current weekly wage rate in the sum of $449.40 per week.

4. Resulting from such injury applicant suffers five per cent permanent loss of use of non-dominant right arm at or above the elbow.

Award

I make the following award in the applicant's favour.

1. $449.40 per week under section 36 from 4 December 1992 to 26 January 1993 and from 5 February 1993 to 22 February 1993 and from 19 March 1993 to 7 May 1993.

2. $4,826.25 under section 66 for five per cent permanent loss of use of right non-dominant arm at or above the elbow.

3. Interest on section 66 sum at 6 per cent per annum from 4 December 1992 to date.

4. Respondent to pay applicant's medical expenses referable to above period under section 60.

5. Respondent to pay applicant's costs. Recommend that such costs include special conference fee and fee for taking judgment for counsel and advice on evidence fee.

6. Reserve liberty to apply as to weekly payments generally including re-crediting of sick leave taken by applicant.

7. In view of applicant's consent thereto and in view of payment of sick leave to applicant during the entire period of incapacity as above, I order stay of proceedings in respect of all of the above award for 28 days and reserve liberty to apply for extension of such stay, on three days' notice.

Orders accordingly

Solicitors for the applicant: White Barnes

Solicitors for the respondent: Pieterse & Pieterse