Apps v Apps Plant Hire Pty Ltd [1997] NSWCC 4; (1997) 14 NSWCCR 258 (5 February 1997)

[1997] NSWCC 4; (1997) 14 NSWCCR 258

APPS v. APPS PLANT HIRE PTY LTD

Compensation Court of New South Wales: Campbell CJ

18 JULY, 13 NOVEMBER, 9 DECEMBER 1996 (H)

5 FEBRUARY 1997 (J)

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS FOR SPECIFIC INJURIES - PERMANENT IMPAIRMENT OF BACK - LOSS OF EFFICIENT USE OF LEG - ONE INJURY PRE-1987 ACT (ONE INSURER) - ONE INJURY POST-1987 ACT (ANOTHER INSURER) - DEDUCTIBLE PROPORTION 75 PER CENT DUE TO PRE-1987 ACT INJURY - NO APPORTIONMENT BETWEEN INSURERS - WORKERS COMPENSATION ACT 1987, SECTIONS 22 AND 68A AND SCHEDULE 6, PART 6, CLAUSE 6(2)

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS FOR SPECIFIC INJURIES - LOSS OF EFFICIENT USE OF LEG - ONE INJURY PRE-1987 ACT - ONE INJURY POST-1987 ACT - COMPENSATION PAYABLE AT FORMER ACT RATES FOR PROPORTION OF LOSS DUE TO INJURY PRE-1987 ACT - WORKERS COMPENSATION ACT 1987, SCHEDULE 6, PART 6, CLAUSE 4 - WORKERS COMPENSATION ACT 1926, SECTION 16

V. JURISICH, for the applicant

R.J. TAYLOR, for the respondent (NZI Insurance Australia Ltd)

P.L. PERRY, for the respondent (NZI Workers Compensation (NSW) Ltd)

CUR ADV VULT

CAMPBELL CJ: The applicant in this matter claims weekly payments of compensation, lump sums and medical expenses in respect of injuries to his back with consequent effects upon his legs alleged to have arisen out of and in the course of his employment with the respondent.

Mr Jurisich of counsel appeared for the applicant, Mr R. Taylor of counsel appeared by leave for NZI Insurance Australia Ltd, the insurer of the respondent up to 1 July 1987, and Mr P. Perry of counsel by leave appeared for NZI Workers Compensation (NSW) Ltd, the insurer of the respondent thereafter.

The hearing of this matter commenced in Queanbeyan and I granted an application that it be adjourned part heard to Sydney for reasons I then gave. In the event, that adjournment allowed Dr Ashman to be called to give evidence and a report obtained from the highly qualified radiologist Dr Korber. This material substantially resolved one of the important medical issues in the case and thereafter counsel conducted the matter with a relevance to the outstanding issues for which I am grateful. Having regard to the way in which the case was conducted, particularly after this evidence was forthcoming, I can set out the conclusions to which I have come and my reasons therefore in considerably shorter form than would otherwise have been necessary.

The applicant is a 47-year-old married man who left school at 15 and then, after working as a butcher, plant operator and landscaper in July 1980 formed the respondent company of which he and his wife were and probably still are directors. The company was a haulage company transporting mostly gravel, sand and road base and also grain using tipper trucks. The applicant was a working director and, the evidence establishes, a very hard working one doing much driving and similar work himself as well as clerical and organising work. It is convenient to say that I found the applicant both truthful and reliable.

On 28 May 1986, when the applicant was in the process of stepping from an earth-retaining bank which formed part of a loading bay into the doorway of his truck, a piece of the bank gave way. He fell down between the bank and the truck, saving himself from falling the full way to the ground by grabbing something on or just inside the door of the truck. He then hung there until he was rescued by others. They had to drive the truck away from the earth bank whilst holding him in place and then take him down and lie him upon the ground.

In the fall the applicant felt the tail-bone part of his back strike the bank and he was, whilst suspended, unable to feel his legs. He had a pain in the middle of his back and was thereafter unable to stand or to move. His wife was working at the site and she took him to the Canberra Hospital where he remained for some seven to 10 days. At the time he left hospital he could walk although his legs felt numb.

Thereafter, the applicant was for a long time unable to work either at physical or clerical work. He became very depressed and also underwent surgery for an ulcer, which, it is not disputed, was caused by the pain-killing drugs he was taking. The applicant came to operation at the hands of Dr Chandran on 26 November 1990. Following the operation, which was complicated by the applicant suffering from a bleeding problem, the applicant felt very much better. He said that it was like turning off a tap as far as pain relief was concerned.

By November 1991, the applicant had commenced doing some light duty work and thereafter until 2 November 1994 he worked in his business at clerical work with some small amount of driving such as returning vehicles after service and the like. He was working part-time and gradually increased the time worked, although he said he was always cautious and there were a lot of things he could not do.

The operation performed upon the applicant was described by Dr Ashman as a very extensive operation and that doctor agreed with Mr Perry that it is the sort of operation that would normally only be undertaken in almost of critical state of pain and disability of the back. The operation had involved a posterolateral fusion extending from L3-S1 on both sides of the spine with a Hartshill rectangle and some sublamina wires and pedicle screws at L4.

As noted, the applicant felt great relief from this operation and, with the aid of a successful rehabilitation program, returned to work in what he described as, and I accept as, a light-duty situation. On 2 November 1994 the applicant was delivering a truck into town after he had had the oil changed. He described what occurred as follows:

"... in the process of going to town I've just--I've just hit a--you wouldn't call it a pot hole, it's just a dip in the road like so and straight away I just had to pull the truck over and--

Q. What happened?

A. This terrific pain in the back of my legs, down my back, down in the inside of my groin, my fingers were tingling, it was just incredible. I thought, well, here we are, it's all on again."

The applicant pulled the truck over and stopped it, even though it was blocking part of a lane. He rang his wife saying that he was unable to drive further. She came and took him to a medical centre and subsequently home. The applicant has not been able to work since that incident and I accept that he has been in considerable pain and discomfort since then.

[HIS HONOUR THEN CONSIDERED THE MEDICAL EVIDENCE AND CONTINUED - ED]

I think it more probable than not that the applicant's condition subsequent to 2 November 1994 resulted from injury on that day.

Being of the view that, more probably than not, the forces associated with the passage of the truck though the dip in the roadway were sufficient to and did cause a fracture of the graft, albeit in a weak area of the graft, it is unnecessary for me to consider the principles discussed in ZICKAR v. MGH PLASTICS INDUSTRIES PTY LTD (1996) 13 NSWCCR 680.

The applicant has not worked since that time and I accept, on the evidence, has been totally incapacitated for work. I did not understand counsel to seriously contest that matter. Mr Jurisich at my invitation prior to the completion of addresses submitted that the appropriate award in those circumstances would be in the sum of $580 per week from the cessation of payments of compensation for a further period of 13 weeks, that is from 8 February 1995 to 2 May 1995 and thereafter at the rate of $316.90 per week, as adjusted. I indicated that I would expect counsel to make submissions on this assertion if they challenged it. No such submissions were made and I propose to make an award on that basis.

For the purposes of section 22 of the Workers Compensation Act 1987 I consider it more probable than not that the applicant's condition from 2 November 1994 resulted partly from the injury of May 1986 and partly from the injury of November 1994. A question of apportionment in relation to the weekly compensation then arises.

[HIS HONOUR THEN CONSIDERED THE OPINIONS EXPRESSED BY VARIOUS DOCTORS AND CONCLUDED- ED]

Having regard to the facts as I accept them, the various medical opinions tendered and in particular the nature of the incident of 2 November 1994, I consider that an appropriate proportion upon which the insurers should bear liability for the weekly payments is 75 per cent to NZI Insurance Australia Ltd and 25 per cent to NZI Workers Compensation (NSW) Ltd.

I should note that Mr Jurisich also relied with little elaboration upon an allegation that, from 28 May 1986 to 2 November 1994, the applicant suffered injury as a result of the nature and conditions of his employment with the respondent. I am not satisfied on the balance of probabilities that this allegation is established. For much of the period the applicant did no work at all and at the later stages he was doing light work and being, as he put it, cautious about what he did. Dr White in his report following his examination of 3 June 1994 said:

"There is no evidence that his recent work as a truck driver has materially aggravated his pre-existing condition."

I turn now to the applicant's claims under section 66.

[HIS HONOUR CONSIDERED THE RELEVANT MEDICAL EVIDENCE AND CONTINUED - ED]

Mr Jurisich put that the proper finding was one of permanent impairment of the back being 50 per cent of a most extreme case. Little was put by Mr Perry or Mr Taylor in opposition to Mr Jurisich's submission on this point. The doctors' opinions are not expressed in the terminology of the Act; however, taking their views into account together with the evidence, in particular that of the applicant, I am satisfied that more probably than not the applicant has suffered permanent impairment of his back being 50 per cent of a most extreme case.

I am of the view, for the reasons discussed earlier, that 75 per cent of the impairment is due to the injury of 28 May 1986. Applying the provisions of section 68A and Schedule 6, Part 6, clause 6(2), there is a deductible proportion of 75 per cent of the loss.

Dr Ashman is of the view that the applicant has suffered a 5 per cent permanent loss of the efficient use of the left leg at or above the knee. However, no other doctor supports such a loss and Dr White expressly negatived it. The applicant's own evidence does not support such a loss in respect of his left leg. I am not satisfied that there is such a loss in respect of that leg.

[HIS HONOUR CONSIDERED THE OPINIONS EXPRESSED BY THE MEDICAL EXPERTS AND CONTINUED - ED]

Mr Jurisich put that I should accept a permanent loss of efficient use (of the right leg at or above the knee) after the November 1994 incident of 25 per cent. Mr Perry accepted that assessment and Mr Taylor did not challenge it in his submissions. I am satisfied on the medical and other evidence that that is the correct finding.

As discussed earlier Mr Perry did submit that the applicant's condition had not worsened on a permanent basis following the November 1994 incident, however, I am satisfied that it did and that his right leg pain was worse after that incident.

The effect of section 68A, particularly subsection (6), and Schedule 6, Part 6, clause 6(2) requires a finding that there be a deductible proportion and that that proportion be 75 per cent.

Once section 68A is applied there remains no scope for the apportionment of the section 66 awards thus made, which exclude so much of the loss as is due to the earlier injury. Even if apportionment were still available, the correct conclusion would be, in the circumstances, that no amount be apportioned to the first injury.

My present view is that the applicant is also entitled to an award under section 66 determined in accordance with section 16 of the Workers Compensation Act 1926 (see Schedule 6, Part 6, clause 4) in respect of the permanent loss of the efficient use of the right leg due to the injury of May 1986. Counsel did not address on this question, albeit Mr Perry did submit that the applicant's only relevant entitlement was to a section 16 sum and I consider that I should give the parties the opportunity to make submissions on this point, should they wish to do so, before making such an award.

The awards I propose to make under section 66 cross the threshold under section 67(2) and the applicant is entitled to an award under section 67 for pain and suffering in respect of the injury of 2 November 1994. It is convenient to note that it was not submitted that any question of apportionment arose in respect of this item.

The amount provided in relation to section 67 for a most extreme case in November 1994 was $65,700.

[HIS HONOUR CONSIDERED THE RELEVANT EVIDENCE ON THE ISSUE OF PAIN AND SUFFERING AND CONCLUDED - ED]

In respect of the pain and suffering resulting from the losses resulting from the injury of 2 November 1994, I consider an award of $32,350 is appropriately proportional to a most extreme case. Of that sum I apportion $8,000 to the period from 2 November 1994 to date.

I assume that the applicant's medical expenses were paid to the date compensation payments ceased. From that date he is entitled to an award under section 60. That award should be apportioned between the insurers in the same proportion as the weekly payments.

[HIS HONOUR THEN MADE FORMAL FINDINGS, AN AWARD AND ORDERS NOT CALLING FOR REPORT. LATER THAT DAY, HIS HONOUR GAVE THE FOLLOWING SECOND JUDGMENT - ED]

In this matter I gave judgment this morning. I said amongst other things, my present view is the applicant is also entitled to an award under section 66, determined, pursuant to Schedule 6, Part 6, clause 4, in accordance with section 16 of the Workers Compensation Act 1926. That is claimed in respect of the permanent loss of the efficient use of the right leg due to the injury of May 1986. I invited counsel to address me to consider that matter and they addressed me upon it. Mr Taylor, whose client is the one directly affected, has indicated that he does not wish to submit that my tentative view is not the correct one and that position is adopted also by Mr Jurisich.

The question then remains, what is an appropriate award to be made under section 16. Mr Taylor has submitted that an appropriate approach on the evidence and upon my findings is to take the amount under section 16 of $5,500 and to determine 75 per cent of that sum.

There is an interesting possibility of a lack of congruity between the deduction under section 68A required by the terms of that section and what may be the factual situation in any particular instance. It seems to me, however, that in this particular case, the method of calculation put by Mr Taylor is an appropriate way on the facts of this case to come to a conclusion. I am informed that Mr Jurisich would not wish to put anything in opposition to it.

Accordingly, I find that as a result of the injury of 28 May 1986, the applicant has suffered 18.75 per cent permanent loss of the efficient use of the greater part of the right leg.

[HIS HONOUR THEN MADE AN ADDENDUM TO HIS EARLIER AWARD AND AN ORDER FOR COSTS NOT CALLING FOR REPORT - ED]

Solicitors for the applicant: GARY ROBB & ASSOCIATES

Solicitors for the respondent (NZI Insurance Australia Ltd): COMMINS HENDRIKS

Solicitors for the respondent (NZI Workers Compensation (NSW) Ltd): HICKSON LAKEMAN & HOLCOMBE