CARTER CORPORATION PTY LTD v MEDWAY [1995] NSWCA 70

CARTER CORPORATION PTY LTD v MEDWAY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 12 July 1995, 12 July 1995 [1995] NSWCA 70

WORKERS COMPENSATION ACT 1987 APPEAL — s67 — AWARD EXCESSIVE COMPARED TO PROVEN LOSS — ASSESSMENT SET ASIDE — APPEAL ALLOWED — REASSESSMENT MADE

Clarke JA The respondent, who was born on 28 March 1926, was injured whilst working in his employment as a driver on the 2 April 1991. In his evidence in chief he said that whilst loading cattle on a cattle truck he slipped on the floor of the vehicle and injured his left knee. The knee became numb and swollen and was placed in a cast for six weeks.

According to Dr Downes, an orthopaedic surgeon qualified by the appellant, the injury was a fracture of the patella which was quite a nasty fracture. There was also a direct contusion to an arthritic femoropatellar joint and the doctor thought that probably he wrenched a quite arthritic left knee. I should interpose the observation that, although there was radiological evidence of arthritis, the evidence which was accepted was that he was asymptomatic prior to the injury.

The respondent was taken to Goulburn Hospital and at that stage his knee was very numb and was stiff and swollen. After the cast was removed his knee was naturally stiff and not working well but, on doctor's advice, the respondent exercised it. Also in accordance with that advice the respondent returned to work to test out the knee. In that work he was driving a 500 horsepower truck with a manual clutch which required a lot of pressure on the clutch. He found that in doing the work his knee got very sore and that by the time that he got home after a journey it was completely numb. Eventually he found that he was unable to continue driving.

He was asked how his knee had been since the accident and he said: