Mueller v Handelsons [2001] NSWCC 10 (1 March 2001)

Last Updated: 18 December 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Mueller v Handelsons [2001] NSWCC 10


PARTIES:
Carl Mueller
v
Handelsons Pty Ltd and Wills Sales (Aust) Pty Ltd trading as Harting Australia


CASE NUMBER: 1191 of 1998 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Moran J

DATES OF HEARING: 28/02/01
01/03/01

EX TEMPORE DATE: 01/03/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Taylor and Scott Solicitors
FOR RESPONDENT: Hunt and Hunt Solicitors - 1st Respondent
AO Ellison Solictors - 2nd Respondent


JUDGMENT:

1. The applicant in these proceedings, who is now aged 39, was employed by the respondent company as a service manager and he claims that in the course of his employment on 19 September 1997 at the premises of a client of his employer (Handelsons Pty Ltd), Nepean Rubber, he had been assigned to replace a tie bar on a machine. This type of activity was something that the applicant was used to carrying out - mainly, being sent to other factories to service some machines, and his employer would bill that other factory for his time. He said that while he was working on the gantry around the machine he slipped and fell and struck the left-side of his ribs on the gantry and fell down to the floor. In his evidence he said he fell down on his outstretched hands.

2. It is not disputed that prior to the incident the applicant, as was shown in x-rays taken shortly after 19 September 1997, had un-united fractures in both his left and right wrists. It is not disputed that there was degenerative osteoarthritis in both wrists. The applicant however says that despite that prior to 19 September 1997 and for many years he was able to carry out not only work with the respondent company but also work with other companies referred to in his evidence. A lot of the work involved use of both arms, use of screwdrivers, tightening, repairing things, constantly applying force to his arms and wrists and yet he said he was able to do all that was required of him in his previous employment without symptoms.

3. There was another respondent in these proceedings, Wills Sales (Aust) Pty Limited trading as Harting Australia. The applicant says that he thought in 1984 he had gone to Westmead Hospital after he fell at work but he presented no medical evidence to support his claim that that incident was responsible for his right wrist being fractured. I was not satisfied on the balance of probabilities that he did suffer a fracture in his right wrist in that fall. I made an award in favour of the respondent.

4. The applicant said that as far as his left wrist was concerned he recalled a football injury back in 1977 or thereabouts. He also gave histories to doctors - in particular, his general practitioner, Dr Papamichos, Exhibit D, p 2 - that:

Carl stated that he had fractured his wrist approximately 15 years ago, though he was unsure as to which bone was involved. In addition he indicated to me that in the past while go-cart racing he had injuries that may have involved his wrists although he did not have these injuries attended.

5. The applicant's evidence is that on the morning of 19 September 1997 when he went to work he had no problems with his wrists. His wife says, and she gave evidence on his behalf yesterday, that in the five years she had known him they had enjoyed a number of sporting activities and that he had never complained to her about his wrists. She gave evidence to say that he telephoned her and said that he had fallen off a machine - and when he came home she noticed that both his forearms were swollen from the wrist to the elbows. He complained also of painful ribs. She noticed swelling from the base of the thumb on each arm, one-and-a-half inches up to the forearm, and all the way around the wrist. She said she wrapped his wrists in ice-packs. She said his ribs were red and bruised on the left side and that bruising lasted a couple of weeks.

6. The respondent's case is that his employer was not happy with his performance, that he had been spoken to about an allegation of sexual harassment by one female on a particular occasion, that he had been asked to apologise and he would not apologise because he was not satisfied any such claim had been made out. That he had taken advantage of an offer to use the firm's equipment at weekends doing private work on chassis and frames of racing cars. There had been other complaints about his work et cetera. The respondent submits that knowing that he was under a cloud the applicant decided to say he had a fall and injured himself. The applicant strongly denies this and says that while he was working on this platform at Nepean Rubber he had slipped on the gantry, striking his ribs and then falling on his arms.

7. He said that not long after that occurred - round about 9.30 in the morning - he telephoned his employer and spoke to the store manager, Mr Opitz, telling him that he had had a fall. Mr Opitz gave evidence and he does not deny that he received that phone-call. Mr Opitz said that when the applicant came back from Nepean Rubber he spoke to the applicant in his office but he personally did not see any swelling of the applicant's wrists. He said that "if it hurts, why don't you go and see a doctor?" Mr Opitz said that he told the managing director, Mr Udo Handel, that the applicant had reported to him of a fall whilst working at Nepean Rubber. The applicant claimed in an unsigned statement, which became Exhibit 3, and in his evidence before me that an employee of Nepean Rubber, Mr Joe Pusarich, had gone for morning tea when this fall took place and that when Mr Pusarich returned he told him that he had had a fall.

8. In his evidence Mr Pusarich said he did not recall the applicant saying to him at any time that he had fallen from the machine. He did not recall saying to the applicant "Are you okay?" He could not recall the applicant saying "No, I've hurt my wrists". The applicant also claimed that Mr Pusarich signed the service report, which became Exhibit 6, after he, the applicant, had written on that service report" "Note: Incurred injury at worksite resulting in arms/wrist 19/9/97. Time approximately: 9.30". Mr Pusarich said that he did sign the service report on 19 September 1997 but there was no such notation on the document he signed. I accept the submission made by counsel for the respondent that the note that appears in Exhibit 4, a copy of the service report, was made by applicant after he left Nepean Rubbers premises and either between there and arriving at his employer's premises or when he arrived at the employers premises and that the note was not present on the original when Mr Pusarich signed at the bottom of the original form.

9. The applicant also said in evidence that Mr Horton, another employee of Nepean Rubber should have seen him fall. However, Mr Horton in his statement, which was tendered (Exhibit 9), said that although he assisted the applicant, and he was not with him all the time, that later in the morning the technician (that is the applicant) asked him a question about a setting on the computer and he told him how it needed to be done manually. The applicant told him he could not do it because he had a sore back and Mr Horton said, "Well, I have just come off light duties" but in any event Mr Horton turned the handle the 14 times required. He said at no time did the applicant mention to him that he fell or did he see him fall from the machine.

10. The applicant was subsequently dismissed from the employ of the respondent and the reasons for his dismissal were set out in Exhibit 8. Mr Udo Handel, the managing director of the company, was not called - and the failure to call him was criticised by applicant's counsel. True it is there were discrepancies between parts of Exhibit 8 and what the applicant said in evidence that might have helped me in some aspects of the claim, but on the question of injury and the recording of injury et cetera I do not think that Mr Handel's evidence was relevant. The only relevant matters he could have helped on were whether or not I could reach a conclusion that the applicant knew that he was likely to be dismissed in the near future or not - because we do know that another senior executive of the respondent company, Mr Symes, had two days before drafted a letter of dismissal for Mr Handel to complete when he spoke to the applicant.

11. What impresses me more than anything in this case is the evidence given by the applicant's wife - in particular in relation to the tenderness and bruising of the applicant's ribs. I accept her evidence that there were no complaints from the applicant before he left for work that day and that he was able to carry out many of the activities described in the evidence. The fact that she noticed a problem with the applicant's ribs, the redness, the tenderness and the bruising - as did his general practitioner the next day - supports the applicant's claim that he did in fact injure himself on 19 September 1997. He (foolishly, in my view) decided to try and improve his claim by saying that Mr Pusarich had signed this service report after he, the applicant, had made a note about his injury; and also by suggesting that Mr Horder would have seen him fall. The fact is the applicant has presented no eye-witnesses to his fall (maybe nobody saw him fall). The employer was suspicious of the claim. The employer has made the applicant come to Court to prove his entitlement to compensation. The applicant does not have to satisfy me beyond a reasonable doubt. The onus is on him to satisfy me that on the balance of probabilities he did suffer the injury to both wrists, as claimed. I find that despite the applicant being at times shown to be dishonest - particularly in his curriculum vitae - and his evasiveness in giving evidence in the Court, he has satisfied me on the balance of probabilities that he did suffer the injury to his wrists, as claimed, and I make an award in his favour.

12. He has had two operations on each wrist and there are arrangements for a further operation. The operations that have been done and the operation next to be done are, on the medical evidence, reasonable and necessary treatment - and it is not disputed by the respondent that in view of the applicant's pre-existing arthritic wrists, this is the type of treatment that the applicant should be having.

13. There are claims before the Court, not only for weekly payments but also for lump sums for permanent loss of use of the lower part of each arm. Because of the continuing operative treatment, counsel for the applicant quite properly does not seek orders under s 66 and a consequent claim under s 67 at this stage because both wrists have not stabilised, so I will deal only with the claim for weekly compensation.

14. The parties have agreed that the current weekly wage rate is $800 per week and that the probable average weekly earnings also $800 per week.

15. The applicant has not engaged in any employment since the injury. Yesterday a video was shown to the court of the applicant carrying out activities at his place of abode in Queensland on 8 June 1999 and again on 14 June 1999. The first day was rather difficult to see exactly the applicant was doing except that at one stage he did have some cloth in his hand and he was rubbing near the rear part of vehicle in a garage, and the next time, on 14 June, he appeared to be using an electric soldering iron on the cabin of a racing car. As I said he has already had four operations, so that he has been under medical care and is still under the medical care. There have been times when he would have been able to carry out light bench work but I am not satisfied that at any stage since 19 September 1997 the applicant would have been able to earn in some suitable employment or business more than $400 or $450 per week when he would probably have earned $800 per week. He does not claim any dependants so that after the first 26 weeks of incapacity any claim under s 40 or even for total incapacity would be paid at the statutory rate for a single person without dependants.

16. For those reasons, I make an award in favour of the applicant:

In respect of his total incapacity for work from 20 September 1997 at the rate of $800 per week until 19 March 1998.

Under s 37:

For total incapacity at the rate of $261.30 per week as adjusted from 20 March 1998 to date and continuing.

I order the respondent to pay the applicant's s 60 expenses.

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

Costs to include the costs of the applicant and his wife travelling to Sydney to attend Court on 3 October 2000, 28 February 2001 and 1 March 2001.

I certify qualifying fee for Dr Miller.

I certify a loading for counsel at Brisbane in the sum of $1,450.

Additional conference at $250.

I note that the applicant's claims under s 66 and s67 withdrawn as condition not yet stabilised.
MR G McCREADY of counsel appeared for the applicant
MR P PERRY of counsel appeared for the respondent