Stranlund v The Mid Coast Meat Company Pty Ltd [1999] NSWCC 9 (25 November 1999)

Last Updated: 9 August 2000

CITATION: Stranlund v The Mid Coast Meat Company Pty Ltd [1999] NSWCC 9

PARTIES: Edward William Stranlund

v

The Mid Coast Meat Company Pty Ltd

TITLE OF COURT: Compensation Court of New South Wales

JURISDICTION: Original

MATTER NO/S: NSWCC 820 of 1999

DELIVERED ON: 25 November 1999

DELIVERED AT: Coffs Harbour

HEARING DATES: 25 November 1999

JUDGMENT OF: Neilson J

NUMBER OF PARAGRAPHS: 40

CATCHWORDS: Workers Compensation Statutes & Delegated Legislation; WCA 1987 s 40. Assessment of compensation. Weekly compensation. Partial incapacity. Exercise of discretion. Worker in gaol. SRA v Davis (1995) 11 NSWCCR 314 cons & distinguished; McNally v Furness, Withy & Coy Ltd [1913] 3 KB 605 cons and distinguished; Kesen v Luke & Singer Pty Ltd (1989) 18 NSWLR 566; 5 NSWCCR 298 applied.

REPRESENTATION

APPLICANT/S

Mr M N Thompson instructed by Walker Kissane & Plummer appeared for the applicant.

RESPONDENT/S

Mr H H Kelly instructed by Sparke Helmore appeared for the respondent.

Compensation Court of New South Wales

Matter No 820 of 1999

Edward William Stranlund

v

The Mid Coast Meat Company Pty Ltd

25 November 1999

JUDGMENT

NEILSON J

In the application for determination before me, Mr Edward William Stranlund of Bowraville, claims certain lump sum compensation under s66 and s67 together with weekly payments from 10 August 1998 to date and continuing pursuant to s38.

Earlier today I entered by consent awards in favour of the applicant in respect of the lump sums claimed under s66 and s67. However the parties have not been able to agree on the extent of the applicant's entitlement to weekly payments.

As the case has been presented and argued there is no issue about the applicant's entitlement under s38. He has not complied with the statutory requirements and therefore his claim under that section must fail. However it is common ground that the applicant is entitled to claim in the alternative partial incapacity pursuant to s40.

The applicant left school at the age of 15 whilst he was in Year 9. He accordingly does not have the school certificate. After leaving school he worked at the Midco Abattoir at Macksville and then at the Wingham Abattoir and then he worked for the State Rail Authority of New South Wales as a labourer and then he worked in a timber mill for some time carrying out the duties of an order man.

In 1990 he commenced work with the respondent at the Macksville Abattoir where he worked until the abattoir shut down on 10 August 1998. It would appear that he has been paid entitlements until 10 August 1998 and therefore his claim should commence on 11 August 1998.

The applicant has for some period of time been paid voluntary payments by the respondent pursuant to s40 in the sum of $104 per week but the applicant says that he is entitled to a greater compensation than that.

The applicant started working for the current respondent as a labourer but in 1991 was appointed a slaughterman. He worked as a slaughterman until 23 November 1994 when he sustained a laceration injury to the little, ring and long fingers of his dominant right hand. That injury occurred on a Wednesday. The applicant attended upon his general practitioner Dr Adams and had three stitches inserted into his right hand. The following two working days were rostered days off.

When the applicant returned to work on the following Monday he was given selected duties but in the course of doing those a tendon in his right little finger snapped. The applicant was then referred to Dr Cumberland, an orthopaedic specialist, and was in due course referred on to Dr Stuart Myers, a specialist hand surgeon in Sydney. The applicant has not worked as a slaughterman since.

The respondent has in fact paid the applicant a lump sum under s66 for 25 per cent loss of efficient use of his dominant right arm below the elbow. Today the applicant has been awarded a further lump sum under s66 for a total of a 3 per cent loss of efficient use of the right arm at or above the elbow because of some problem that the applicant now has in his right shoulder due to favouring his right arm.

The methodology adopted by the parties in that regard is unorthodox but it indicates the extent to which the parties have reached agreement as the extent of the interference with the applicant's dominant right arm.

The applicant worked essentially on restricted duties for the respondent until the closure of the respondent's abattoir on 10 August 1998. Whilst doing restricted duties the applicant's major job was removing hoofs and horns of beasts on the slaughter line. In the course of doing that on 6 March 1998 the applicant sustained an injury to his low back.

The evidence about the extent of the injury to the applicant's low back is really one way. Plain x-ray of the applicant's low back made on 25 March 1998 shows some degenerative changes at the L1/2 level but no problems at other levels of the lumbar spine. The indication at the L1/2 level is of disc space narrowing which would indicate degenerative disc disease at the L1/2 level.

A CT scan of the lumbar spine performed on 11 December 1998 suggests that at the L4/5 level there was a minor posterior disc bulge present indenting the anterior surface of the thecal sac but not causing any significant compression or foraminal obstruction.

If the disc bulging were merely degenerate, one would expect consequent changes in the bony structures above and below the degenerate disc to occur, that is lumbar spondylosis succeeds from degenerative disc disease.

An MRI scan performed on 10 November 1999 by Dr Peter Macintosh again shows degeneration at the L1/2 level but more significantly desiccation and loss of hydration of the L4/5 disc with a small posterior annular tear of the disc at that level. Again if there were that occurring in the diasthesis of spondylosis and degenerative disc disease at the L4/5 level, one would expect there to be some spondylotic changes at the L4/5 level, however there are not. All of this points to the problem in the applicant's L4/5 disc being traumatic rather than degenerative or constitutional.

The respondent relies on an opinion of Dr Robert Elliott, a well respected orthopaedic surgeon, who does not think that the radiological appearances and the applicant's complaints bear out a discal problem at L4/5. However the evidence discloses that the applicant has seen at least two other doctors for the respondent and their reports have not been tendered nor have they been called nor has their absence been explained.

On the other hand the applicant has support for a problem in his low back at the L4-5 level from Dr Patrick and Professor Ghabrial of Newcastle and the applicant's statements about himself as to the extent of his back problem have really not been challenged in any effective way.

I accept that the applicant did on 6 March 1998 sustain traumatic damage to his L4/5 disc. I accept that with the combination of problems that the applicant has in his right hand and forearm and in his low back and some referred symptoms into his legs, that the applicant is unfit for rapid or repeated or forceful work with his dominant right arm, for heavy lifting or bending, for prolonged standing or prolonged sitting, for working in confined or awkward spaces and for any work throwing excessive stress on the back.

The applicant has done essentially unskilled manual work all his life. He does not have any history of clerical skills and his educational qualifications would gainsay any such suggestion.

Essentially the applicant is now confined to doing menial physical work within the parameters that I have set out. However, there is work of such nature available along the mid-north coast of New South Wales. For example though I do not believe the applicant could work as a console operator, he could work as a driveway attendant in a service station. The applicant himself has looked for work with the local Council being a labourer in the local Council's yard, presumably some form of store work. He has also looked for work at the local hospital doing cleaning work.

The applicant has also looked for work at the Norco Cooperative at Bowraville where one would infer he might obtain some sitting or standing work on a line.

All told I believe that the applicant could sell his labour on the open labour market in such employment at the rate of $10 per hour, that is earn $380 per week.

Mr Thompson for the applicant has said with some force that perhaps the applicant with his limitations might only be able to find part-time or casual work. However such work is remunerated at a higher level than that at $10 per hour and part-time causal work might earn the applicant more than full-time 38 hour per week work. However I believe that the mark to be set at the applicant's ability to earn is the sum of $380.

It is agreed that the applicant's probable earnings but for injury have been at all material times $780, the mathematical difference is $400 per week.

The applicant has dependent upon him for support his wife and two of his children. The statutory maximum exceeds the found difference between the applicant's probable earnings but for injury and his ability to earn on the open labour market reasonably accessible to him so that he is prima facie entitled to $400 per week.

No submission has been put to me by the respondent that in the exercise of my discretion I should discount that mathematical difference for any particular reason. The only reason which immediately comes to mind from the evidence that I have heard today, is the fact that the applicant spent some time in Grafton Gaol after being convicted of an offence, some form of offence of cruelty to animals, which attracted some notoriety, both on Mr Laws's radio programme, which may or may not be adverse to the applicant, and in the local area.

However from other questions I put to the applicant I do not believe it has so lessened his repute in the local community that it would interfere with his ability to sell his labour at the rate of $10 per hour. However that raises the question of the fact that the applicant spent some time in jail and during that period he was not paid any workers compensation at all. Counsel can tell me the precise period in due course.

In the State Rail Authority of New South Wales v Davies (1995) 11 NSWCCR 314, there is an interesting obiter dictum by Handley JA on the significance of a worker's being in gaol and s40. His Honour said at 325:

The worker's imprisonment would not be relevant to the determination under s40(1)(a) of the amount of his earnings if uninjured or the amount he is earning or able to earn in his injured condition under s40(1)(b). However the Compensation Court is then directed to determine the amount not exceeding the difference between those figures which bears "such relation to the amount of that difference as may appear proper in the circumstances of the case".

As at present advised and speaking without the benefit of full argument, it seems to me that a strong argument, is available that no amount at all would be proper during a period of full-time imprisonment. The decision of this Court in Australian Iron & Steel v Elliott (1966) 67 SR(NSW) 87, establishes that this requires a determination of the amount which would be proper compensation for the incapacity in question. The same case also establishes that this is a factual enquiry and it is relevant to take into account statutory prohibitions, such as that against the employment of a worker in or about a coal mine after the age of sixty. If a statutory provision of that kind is relevant to the exercise of the Court's discretion under s40(1), I can at present see no reason why the Court should not take into account the lawful restraint on the worker's capacity to seek employment because of his imprisonment for a criminal offence.

However the 'no-amount' approach which his Honour there adopted is inconsistent with what fell form the Court of Appeal in Kesen v Luke & Singer Pty Ltd (1989) 18 NSWLR 566; 5 NSWCCR 298.

There is authority which suggests that there ought be no reduction but that is English authority. That case is McNally v Furness, Withy & Company Limited [1913] 3 KB 605. However it must be borne in mind when looking at authority decided in England and Scotland, that there was no discretion in the British statute equivalent to the discretion which judges of this Court have under s40 of the current legislation and under the former s11(1) of the Workers Compensation Act 1926.

Therefore the 'no reduction' line of authority is inapplicable. There is an obiter dictum from Handley JA that nothing should be awarded under s40 but that opinion appears to be per incuriam of Kesen v Luke & Singer Pty Ltd which has not been overruled, although it has been recently distinguished.

It appears to me that in the exercise of discretion under s40 I should discount the mathematical difference heavily during the period in which the applicant was imprisoned and unable to sell his labour on the open labour market reasonably accessible to him. However it is usual for prisoners to be able to earn some types of income which may pay for cigarettes or other forms of diversion whilst incarcerated.

Doing the best I can I believe in the exercise of my discretion the mathematical difference of $400 should be reduced to $25 per week whilst the applicant was in gaol.

It has now been drawn to my attention that the applicant was in fact in receipt of a consent award not a voluntary payment. That indicates that the whole way this case has been conducted has been misconceived as a matter of practice and procedure and pleading.

To overcome the procedural difficulty to which I have just adverted the parties have agreed on a consent order.

By consent I terminate the weekly payments under the award of 15 October 1997 in Matter No 32942 of 1995 as at 10 August 1998.

I have enquired of counsel for the parties if any further reasons for judgment are required and I am told that none is so required.

For those reasons I make an award for the applicant for $400 per week from 11 August 1998 to 28 March 1999 pursuant to s40.

I make an award for the applicant of $25 per week from 29 March 1999 to 29 June 1999 pursuant to s40.

I make an award for the applicant for $400 per week from 30 June 1999 to date and continuing pursuant to s40.

Credit to the respondent for payments made since 10 August 1998.

Mr M N Thompson instructed by Walker Kissane & Plummer appeared for the applicant.

Mr H H Kelly instructed by Sparke Helmore appeared for the respondent.