Compensation Court of New South Wales CITATION : Harding v Transfield Pty Ltd [2003] NSWCC 3 Mark Harding PARTIES : v Transfield Pty Ltd MATTER NUMBER(S) : 967 of 2002 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Elements of Workers Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10th March 2003 EX TEMPORE JUDGMENT DATE : 03/10/2003 FOR APPLICANT: Mr M J Bleasel instructed by Firths - the Compensation Lawyers LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D G Saul instructed by Hunt & Hunt Solicitors. JUDGMENT: 1. This is an application by Mark Harding against his former employer, Transfield Pty Ltd in which he claims injury in that employ as a fitter, on 21 August 1999, when he was working on a truck and a component landed on his left leg and injured it. He claims in consequence weekly payments of compensation under s 36, s 37, s 38 and s 40 in the alternative (although in addresses only s 40 was relied upon by his counsel) from 21 June 2000 to date and continuing, together with s 60 expenses, the appropriate s 66 lump sum for 22 per cent permanent loss of use of the left leg at or above the knee and a s 67 lump sum for pain and suffering in a maximum of $25,000. He claims interest but I was not addressed on that by either counsel and it is, as I understand it, precluded by legislative amendment so far as s 66 and s 67 lump sums are concerned. The question of interest can always be brought back to me by way of Notice of Motion should any dispute break out on that front, but I do not reserve formal liberty to apply as I was not asked to do so by either counsel. 2. The issues were kindly defined to me by Mr Saul of counsel who appeared for the respondent at the commencement of proceedings on 24 October last as being incapacity and the quantum of the applicant's s 66 and s 67 benefits including, I apprehend, the existence of any entitlement to the latter. 3. The applicant gave evidence and despite considerable defects in recollection, he struck me as an honest man who did his best to give an honest and accurate account of his injuries and disabilities. Unless I indicate to the contrary, I accept his evidence on the issues to which it is relevant. 4. The applicant was born on 21 October 1958. He is thus, to my ageing eyes at least, a relatively young man and that will be reflected in the s 67 lump sum I propose to award him. He has two children, for one of whom he still pays maintenance but for the second of whom he also paid maintenance until 7 November 2001. The issue of dependency is not relevant, as the weekly payment award I propose is less than the maximum appropriate to an adult male without dependents. The applicant, I should add for completeness, is separated and divorced from his former wife, the mother of his children. 5. The applicant had a previous left foot injury in 1983 but it is not suggested in the medical evidence, nor was it suggested to him in cross-examination, that this contributed to any permanent loss of use now existing of his left leg, although that was the leg involved in the earlier injury in 1983. It would appear that he was without problem from a physical point of view when he joined the respondent on 26 July 1999. Before that time, he left school at the age of 16 and became an apprentice fitter, subsequently qualifying in that trade, in which he subsequently worked, predominantly though not exclusively, until he joined the respondent. From time to time he also did truck driving work, it would appear, and indeed that was the last job he had, for a firm named Hymix on the Gold Coast in Queensland, some time before he joined the respondent. 6. The applicant conceded in cross-examination that the reason for him obtaining that work was in order to see his children who were on the Gold Coast, although it paid considerably less than he was usually accustomed to earn as a fitter, predominantly in the maintenance area. He also conceded that he had some months of unemployment after the job at Hymix finished and before he joined the respondent on this occasion on 26 July 1999, and he said that was because he had accumulated funds and had decided to spend more time with his children in the Gold Coast area where they were residing. 7. I say "on this occasion" in relation to the applicant's commencement of his employment with the respondent on 26 July 1999 because in fact he happened to have worked with the respondent on an earlier occasion for a period in similar work, and on a similar basis to that prevailing in relation to the work after 26 July 1999 which he performed for the respondent, mainly on contract doing maintenance fitting underground in tunnels. The applicant had worked for some years, it would appear from the evidence, for various employers on a contract basis, often earning considerable sums of money as a maintenance fitter in oil refineries and on tunnelling projects, as well as in other maintenance fitting work elsewhere. 8. Physically, the applicant's work for the respondent after 26 July 1999 until the subject injury seems to have been reasonably arduous. He was required to work mainly but not exclusively underground, although he had a workshop above ground. Working underground involved negotiating tunnels which had potholes in them which were filled with water, with the ever present danger, which is reasonably obvious, of falling over. In addition to that, he had to work in crouched positions and in confined spaces for long periods, and on occasions had to lift and carry heavy objects in the course of dissembling and reassembling machinery in order to repair it, which was his job. That work he seems to have done without problem until the subject injury occurred on 21 August 1999, as I have said. 9. This injury, which is not disputed by the respondent, as distinct from its consequences, happened much as I have described above. Apparently a hydraulic strut which was supporting a truck did not have sufficient oil in it, and in consequence, as the applicant described it, it "came down" on his legs. He was transported to Concord Hospital. Further detail about that admission is not forthcoming from the evidence, but I assume the applicant was examined and allowed to leave. One way or the other, he worked on for a few days, and experiencing ongoing pain in the left knee, it would appear, consulted a general practitioner who put him off work and sent him on to a Dr Peter Gray, an orthopaedic surgeon. 10. The applicant came to operation on his left knee in reasonably short order at the hand of Dr Gray on 2 August 1999. He had his left knee in a brace for eight weeks following that surgery. He returned to work, he said rather early, on 15 November 1999 because his employer wanted him to do so in order to avoid lost time for work injuries. For some considerable time after his return to work on this date, the applicant did nothing until he himself found work repairing a truck, by something he had not particularly been asked to do by his employer. It is consistent with my assessment of his character in the witness box as an industrious person that he found sitting around doing nothing at work boring, as indeed he said. 11. The applicant seems to have returned to what was essentially his pre-injury employment after that time with the respondent, performing, it would appear, work initially at West Ryde on a tunnelling project, that being the location where he was initially injured. Apparently some difficulties of an organisational kind occurred with that, as well as some difficulties on the applicant's part physically performing the work, which involved the features which I have described above when detailing his pre-injury work, because he was then sent to White Bay where he continued to work for the respondent, apparently performing somewhat lighter work until he was made redundant by it on 20 March 2000. 12. The applicant's evidence in chief was at one stage a little confused as to what occurred after that. Eventually, at my suggestion, it was clarified by a further conference which I suggested the applicant's counsel Mr Bleasel have with his client. It proved that in fact what occurred was that after the applicant's redundancy on 20 March 2000 he was initially successful in gaining employment for a firm called P S Services Pty Ltd trading as Pavement Salvage. The applicant's period of employment was not known to him, nor was it disclosed in any other evidence, but as an estimate the applicant thought that he was with that firm for about 2 months. The total of his earnings according to his evidence on a gross basis there were $1,814. 13. In very rough terms, it can be seen that the applicant's average weekly earnings there if calculated over nine weeks would amount to a little over $200 per week. Apparently the work was not constant, as I understood the applicant's evidence, in that he did not work there every day. His work with that firm apparently involved shifts of 18 hours at a time on occasions. He said the firm dug up pavements on roads, but that his job was measuring and designing a skirt which fitted beside a machine, and also doing a difficult job removing a conveyor. One way or the other, he said that job was too much for his leg eventually, and that was why he left after approximately two months. 14. The applicant then worked for a firm known as The Construct Group. It was drawn to his attention that his group certificate indicated that he worked there from 15 August to 5 September 2000, but the applicant said that he thought he was there for six weeks. His job was fitting conveyor systems into a warehouse. That also seems to have been arduous and physical, for he said that he was obliged to leave it at the end of his period of employment abovementioned because it was too much for his knee. 15. The applicant then worked for a firm named Technomill PLC Pty Ltd and he disagreed with the contents of a group certificate put to him suggesting that he worked there between 12 and 15 September 2000, indicating that he thought he only worked there for five days. He said it was work he was well able to do, because all he had to do was walk around and look at machinery, but he said he found it boring and that he then left. 16. The applicant obtained further employment in short order with a firm named Pirtek where he worked between 3 October and 6 December 2000. That work involved working behind a counter serving customers and making hoses for them, as well as repairing hoses on site. He said he was well able to do the work but had personal issues, as he put it, with the proprietor who was not a nice man, so eventually he left that employment. 17. Shortly after that the applicant started his own business, doing maintenance fitting on pieces of equipment such as trucks and machines which were either delivered to him or which alternatively he fixes on site. That work he clearly conceded involves a good deal of bending and lifting and working in confined spaces and for long hours. It resembles the tunnelling work he did before his injury, but he was astute to say that the tunnelling work would be too difficult for him because of the necessity to negotiate tunnels with potholes in them filled with water, with the consequent and obvious danger of falling over and reinjuring his leg. 18. I accept the applicant's evidence as to this, as it seems reasonably supportable on the parts of the medical evidence which I accept, to which I shall come later. However, his treating orthopaedic surgeon, Dr Gray who is as I shall reveale, optimistic about the results of the applicant's surgery, firstly says that he will suffer increasing osteoarthritic changes limiting activity, and secondly that it is appropriate to put working restrictions on him based on discomfort, that being one of the things he said he would experience if he returned to tunnelling work with the features described above, and I can well understand that. 19. The applicant said that he still surfs as he used to before the injury, but had not played golf or squash, but readily conceded in cross-examination that on the basis of the hours he was working each week for the respondent he did not have much time for sport, and I can well imagine that this was the case. He also claimed ongoing discomfort in his knee mediated by activity, and said that by way of medication from time to time he took proprietary pain-killers as needed. He does not have any ongoing treatment from Dr Gray, his treating orthopaedic surgeon, apart from check-ups, the last of those having taken place late last year. He said and I can readily accept that he is reminded of his injury by pain and restricted movement on a daily basis, although by the same token he is well able, it would appear, to do work which resembles his pre-injury work, but without the more extreme features of it such as working underground. 20. The applicant was cross-examined skilfully by Mr Saul for the respondent and I trust I shall be forgiven if I do not refer to every aspect of that but only to those which particularly affect my determination of the applicant's rights. 21. Mr Saul's cross-examination was mostly concerned with the applicant's pre and post injury employment. He clearly established that the applicant's work pattern immediately before joining the respondent was that for some months he was unemployed as indicated above, and that as also indicated above that he did truck driving work in the Gold Coast area for Hymix earning less money than he would have earned as a maintenance fitter. 22. Tax Returns as to the applicant's pre and post injury employment are in evidence as Exhibit C in the applicant's case, and Exhibit 1 in the respondent's case, and they undoubtedly establish what Mr Saul adduced from the applicant in cross-examination. Mr Saul also had the applicant admit that in his business at the moment, not all of the limitations on his earning capacity are due to his injury, and that some are due to whether trade is good or otherwise. The applicant also told me this, and it seems a reasonable assumption. 23. Mr Saul also established in cross examination that from time to time since the applicant's injury, he has earned very high weekly sums indeed, particularly when employed by Pirtek as discussed above. However I do not think it is appropriate in a case like this to judge the applicant's capacity to earn by reference to the very high figures he has earned sometimes. I think it is more appropriate to look at the pattern of his earnings overall since the injury as compared to before it. I shall deal with that matter later in greater detail. 24. Mr Saul established in cross-examination that the applicant had been well able to walk when he last saw Dr Gray, but the applicant protested that he had only walked about five steps in Dr Gray's surgery, and I can well imagine that in other circumstances when the applicant walks further, he is more affected by pain, and he may then be affected in his gait in the way that he was not when he saw Dr Gray, the latter indicating that the applicant did not walk with a limp. 25. Dr Gray also obtained a history in his last report, which I shall shortly discuss, that the applicant did not experience giving way in his knee, but the applicant said in cross examination on this history that lately since he last saw Dr Gray that tendency has entered the picture and I accept what he says, there being no reason to doubt it to my mind, the applicant being a witness of truth in my view. 26. Mr Saul also put to the applicant that his agreed hourly rate with the respondent was $17.10, as indeed was established by a letter sent to the applicant when he commenced employment with the respondent. The applicant said that he did not know whether $17.10 per hour was the award rate for fitters, but he said that that was indeed the agreed rate, but concurred with a suggestion in cross-examination that he earned a higher rate than this in respect of overtime, and that would seem to be the case having regard to the high probable earnings but for injury with the respondent in the applicant's wage schedule, Exhibit B, to which I shall come later. 27. The medical evidence consists firstly of Exhibit A, the applicant's medical reports. The first from Dr Neil Berry, a consultant surgeon, dated 20 November 2000, offers the opinion that as a result of a knee injury consisting of torn ligaments and a damaged meniscus, for which he came to surgery at the hands of Dr Gray, the applicant has 20 per cent permanent loss of use of the left leg at or above the knee, of which 5 per cent is due to pre-existing changes in the knee, apparently of an osteoarthritic kind, and the remaining 15 per cent is due to the applicant's work injury. 28. Dr Berry thought that the applicant was permanently unfit for work requiring prolonged crouching and squatting and kneeling, and climbing up and down stairs and ladders. He does perform such work in his own business at the present time on occasions, and it obviously cannot be said that he is entirely unfit for it, but I think his capacity to perform work of that kind has been reduced by the subject injury which, after all, is of a very objective kind, it having required surgery to correct it. 29. Dr Raymond Wallace wrote a report of 31 May 2001, he being an orthopaedic surgeon and being qualified, like Dr Berry, by the applicant's solicitors. He thought the applicant unfit for his full pre-injury duties as a fitter in the long term, and best fitted to continue in what Dr Wallace thought were his current light duties at work, with due consideration being given to restrictions on his activity, which Dr Wallace expressed as being unfitness for activities requiring repeated bending, squatting, crouching or kneeling on the left leg, as well as sitting or standing at one position for prolonged periods, repetitive lifting above 10 kgs, working in confined spaces or heights or on ladders, prolonged driving of motor vehicle with manual transmission and prolonged periods of stair climbing. 30. As I have already said, the applicant performs many of these sort of activities in his current work on a self-employed basis, and has indeed done so for other employers since the subject injury. I think his capacity to perform them however has been somewhat reduced by the subject injury, and I certainly think he is not fit, as indeed he himself avers, for his pre-injury work as a maintenance fitter in tunnels. Dr Wallace expressed a permanent loss of use of the left leg at or above the knee of 22 per cent, entirely attributable to the subject injury. 31. A certificate but not a report from Dr Chernin, the applicant's treating general practitioner, is part of Exhibit A and it does not assist me in my current task, because it does not describe the "suitable duties" for which it assesses the applicant as fit from 22 June 2000, the certificate being dated 19 November 2001, well after the event, except to the extent that it says "no ladders or tunnelling" on the following page, which confirms in my view that the applicant is not fully fit for his pre-injury work in tunnels, as the opinion comes from his treating general practitioner and his specialist report. 32. A report of 23 January 2002 to the applicant's solicitors from Dr Peter Gray, orthopaedic surgeon, the applicant's treating surgeon, completes Exhibit A. Apparently he found at operation on 2 September 1999 a bucket handle tear involving the posterior horn of the lateral meniscus, as well as a torn medial collateral ligament and a tear of the anterior cruciate ligament with an avulsion from the femur, in consequence of which partial meniscectomy was performed. It is not surprising that Dr Gray is of the view that the applicant will suffer ongoing and increasing degenerative changes in his knee as a result of that injury, by way of post-traumatic osteoarthritis. He thought that the applicant had no restrictions on his activity other than those imposed by discomfort, but those would seem to me to involve a ruling out of the applicant's pre-injury work in tunnels, for reasons already expressed. Dr Gray did not in that report express a permanent loss estimate. 33. However, in a report dated 4 September 2001 tendered by the respondent which became part of Exhibit 3, Dr Gray expressed a 10 per cent permanent loss of use of the left leg at or above the knee as at 4 September 2001, following a visit on 20 August 2001, but qualified this by saying that percentage impairment would increase over time as osteoarthritic changes supervene, which may be the reason why the applicant is currently experiencing giving way in his knee, although no doctor says that and I therefore cannot come to any firm conclusion about it. 34. A further report of Dr Gray of 13 January 2003, again addressed to the respondent, like that just discussed, is also part of Exhibit 3, and he did not then express a further s 66 assessment, although he saw the applicant on 17 December 2002 before writing the report. He repeated what he said earlier about the risk of earlier than normal osteoarthritic changes in the knee, although he could not express any definite time frame. He again said he would not impose any restriction on activity other than any which may be imposed by discomfort which, as I have said, would seem to rule out the applicant's tunnelling work which he was doing before the injury, and to which after all he attempted to return after the subject injury with, he said, unacceptable consequences so far as pain was concerned. 35. Finally, by way of medical evidence, there is a report from Dr David Bornstein, an orthopaedic surgeon, which is also part of Exhibit 3 and dated 22 May 2002 and addressed to the respondent's solicitors. Dr Bornstein assesses in that report a 5 per cent permanent loss of use of the left leg at or above the knee and simply says the applicant is fit for work apparently without restriction. I accept that the applicant does have some ongoing restrictions of the kind I have summarised above in relation to his ongoing ability to work, and that he has a somewhat higher s 66 assessment than Dr Bornstein suggests. Comparing the applicant's ongoing complaints in his evidence with what is said in the various medical reports I think, notwithstanding its antiquity, that the report of Dr Berry best assesses the applicant's permanent loss. I think that against the background of pre-existing degenerative changes in the knee to which Dr Berry attests, the applicant has suffered a considerable permanent loss of use of the left leg at or above the knee, taking into account the fact that he had an injury in it sufficient to require surgery, and the fact that the pathology found at operation by Dr Gray was in multiple areas, as summarised above. 36. There will therefore be an award in respect of 20 per cent permanent loss of use of the left leg at or above the knee, which will be the subject of a s 68A deduction as suggested by Dr Berry to the extent of 5 per cent, leaving the applicant with a compensable 15 per cent permanent loss of use of the left at or above the knee under s 66. 37. In consequence, the applicant passes the s 67 threshold. I think his pain and suffering has been moderate rather than severe, taking into account his return to work and the relatively successful result from surgery, but as against that, the applicant has an ongoing problem with his left knee which causes him daily pain and suffering. Without summarising what I have already said in my summary of his evidence about this, I think the appropriate level at which to determine his pain and suffering in proportion to a most extreme case is 20 per cent or 1:5. I do not include in that assessment any pain and suffering which may result from any increased percentage loss of use of the left leg at or above the knee because of advancing osteoarthritic changes, as that is a matter for future application if ever it is made. 38. This brings me to loss of earning capacity. I have already said that the appropriate way to assess the applicant's ability to earn in suitable employment is not to examine microscopically, as it were, his earnings at different times, but rather to look at them in a global way over the entire period since the injury occurred. Over that period he earned on occasions figures somewhat higher than the figure I have decided to determine to be his ability to earn in suitable employment, but for much longer periods he earned considerably less than this figure. 39. The reasons for the latter include, as I have said, slackness of trade on occasions in his own business rather than his injuries. I do not think in this case that the prima facie approach, that the applicant's actual earnings are his true ability to earn (see Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 (CA)), is correct. I think, employing the knowledge of industrial awards and such matters said to be posessed by this Court in such authorities as J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625, the applicant is in fact able to earn in suitable employment the sum of $800 per week and has been so able since the commencement of his claim for weekly compensation on 22 June 2000. 40. Exhibit B, the applicant's wage schedule, which was not the subject of a competing wage schedule from the respondent, discloses the applicant's probable earnings but for injury in the employ of the respondent at all times from 22 June 2000 to date and continuing at $1,863.90 a week. It shows the applicant's actual earnings as being nil until 30 June 2000, and from 1 July 2000 to 30 June 2001 $169.15 per week, from 1 July 20001 to 30 June 2002, $211.45 per week, and from 1 July 2002 to date and continuing $211.45 per week. I do not know how those figures were derived, and presumably it was the result of simple averaging over the entire period, but they do not give a correct picture of the applicant's earnings with his post-injury employers, particularly Pirtek, where he earned very high figures indeed for a short period, as indeed he admitted in cross-examination. As I have said, I do not think the applicant's earnings in his own business are entirely reflective of his full capacity to earn either. 41. Coming to the applicant's probable earnings but for injury, however, Mr Saul submitted that the proper course was to take account of the fact that the applicant's contract would have concluded a matter of months after the subject injury in any event, something he readily conceded in cross-examination, and that therefore he would not have worked for the respondent on the probabilities after that, even had he remained uninjured, which is obviously the case. 42. I did not understand exactly how Mr Saul based this submission, but he submitted that the proper level at which to find the applicant's probable earnings but for injury on an ongoing basis after he left the respondent was at a level of $800 to $900 per week. He suggested that the applicant's ability to earn in suitable employment should be set at a relatively high level, which was a matter for the Court, but he submitted the applicant should not receive under s 40 the whole of the difference between that figure and his probable earnings but for injury, but rather only some part of it, because of discretionary factors, which he said included the fact that the applicant's business earnings were depressed on occasions by slackness of trade rather than his injury, and because the applicant had not engaged in full-time employment for a substantial period before joining the respondent, as well as other matters, which he said should lead me to award the applicant a net sum of $50 to $100 per week under s 40 by way of weekly payments. 43. Mr Bleasel contented himself with reminding me that the applicant had been in full employment since he left school, and suggested that the way to compute the applicant's ability to earn in suitable employment was by taking the $17.10 per week which the applicant admitted was the hourly rate at which he was remunerated for 38 hours per week by the current respondent under his contract, and multiplying that by 38 for a 38 hour week to arrive at the figure of $649.80 per week, which he said was the applicant's ability to earn in suitable employment. I do not understand the basis of that submission fully either, but I have not accepted it because I think the applicant's ability to earn in suitable employment is considerably higher than that, namely $800 per week at set out above. 44. Mr Saul's submission, as I reminded him at the time, seems to me to be contrary to what was said in Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 by the Court of Appeal, and indeed possibly contrary also to what was said by that Court in Australian Wheat Board v Pantaleo (1984) 1 NSWCCR 1. Those authorities, particularly Australian Wire Industries, appear to me to point to a necessity to hypothesise that the applicant's probable earnings at the time of injury with the respondent would have continued, for purpose of the top line under the s 40 calculation. That approach seems to me to be mandated by the terms of s 40 itself, which in this respect correspond largely with those of s 11(1) of the Workers Compensation Act 1926, which was being considered in Australian Wire Industries and in Pantaleo. That is because the top line of the s 40 calculation as set out by s 40(2)(a) is: The weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment. 45. The sum of $1,000 per week is included in the section after the words "not exceeding" in brackets, that that sum has been updated and the statutory cap past which probable earnings but for injury are not to be considered varies in this case considerably from 22 June 2000. Until 30 September 2000 the maximum is $1,197.20 per week, from 1 October 2000 until 31 March 2001 it is $1,210.20 per week, from 1 April 2001 until 30 September 2001 it is $1,237.80 per week, and from 1 October 2001 to 31 March 2002 it is $1,259.20 per week, and from 1 April 2002 to date and continuing it is $1,281.30 per week. I asked Mr Saul whether he disagreed with the last mentioned figure on an ongoing basis and he indicated that he did not. The result is that I may not include in the s 40 calculation any probable earnings but for injury in the applicant's wage schedule exceeding the above statutory maxima, and I have of course observed that prohibition. 46. Mr Saul drew my attention to s 43(1)(a) which reads Average weekly earnings shall be computed in such manner as is best calculated to give a rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which during the 12 months previous to the injury was being earned - (i) by a person in the same grade, employed at the same work, by the same employer; or (ii) if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district. 47. That section does not seem to me appropriate here because the applicant's injury took place on 21 August 1999, a little less than a month after he joined the respondent on 26 July 1999. It is perfectly possible to compute what his earnings would have been had he remained employed by the respondent for as long as he would have been employed by them, namely the figure of $1,863.90 per week set out in the applicant's wage schedule which, as I have said, was not contested by a competing schedule by the respondent. 48. The holding of the Court of Appeal in Australian Wire Industries would seem to me to oblige me to assume, for purposes of the calculation of probable earnings but for injury, that the applicant would have continued to earn this last mentioned sum (observing the statutory caps mentioned above) on a continuing basis until the present time had he not been injured, because that was the approach taken in that case, notwithstanding that the applicant retired compulsorily at a time before his weekly payments fell for decision. The Court of Appeal said that the appropriate course was to extrapolate the applicant's probable earnings but for injury forward hypothetically until the time weekly payments were to be assessed at hearing, notwithstanding that they would in fact not have so continued because of what was then compulsory retirement before that time: see McHugh JA (as he then was) at 54D. As his Honour said there, this approach was required by Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87. I can see no reason in principle why this same approach should not be taken in cases such as the present where the employment would have ceased, even had injury not supervened, because of the duration of the contract. This would seem to be required indeed by the very terms of s 40(2)(a) quoted above. The position is the same with persons imprisoned after injury and then unable to be employed: despite strong obiter by Handley JA in State Rail Authority v Davies (1995) 11 NSWCCR 314 at 325D (his Honour acknowledged at 324E-F English authority to the contrary) in the event even imprisonment was held in that case to be a discretionary matter relevant only at the third stage of the s 40 calculation. Remembering that in the present case, unlike Australian Wire Industries and State Rail Authority, there was no absolute legal bar to the applicant's continued employment by the respondent after his contract expired, had he remained uninjured - it may, for example, have found him work elsewhere - the authorities seem to me to indicate the approach I have taken. 49. The Court of Appeal said in Australian Wire Industries that it was at the third stage, namely the discretionary stage where the Court had to decide whether the applicant should receive the whole of the difference between his probable earnings but for injury and ability to earn in suitable employment or some part of it, that the fact that the employment would not in fact have continued, should be taken into account (see McHugh JA at 55A). That seems to me to be the correct approach here and rules out the submission which Mr Saul made. 50. The alternative approach Mr Saul suggested would have involved implementation of the matters suggested by him as discretionary factors in the determination of the applicant's probable earnings but for injury, that is to say, the first stage of the s 40 calculation mandated by s 40(2)(a). In fact the result of that calculation, had I adopted Mr Saul's approach, would have been that I would have determined that the applicant's probable earnings but for injury were at a level a little higher than Mr Saul suggested, namely $1,000 per week, estimating what the applicant would have been likely to earn in his trade as a maintenance fitter after his contract with the respondent expired and using the information I have about his actual earnings in that trade until the present time, but increasing them somewhat because he would not have had the disabilities which required him to leave some jobs but not others as described in his evidence. Deduction from that figure of the applicant's ability to earn in suitable employment as I have found it, namely $800 per week, would have resulted in a difference of $200 per week, which I would then have awarded the applicant in its entirety had I accepted Mr Saul's submission, because the matters suggested by him as discretionary factors would then already have been taken into account in determining the probable earnings but for injury. 51. As it is, I think the proper approach is to take the statutory maxima from time to time in relation to the probable earnings but for injury mentioned above, and to deduct from those the applicant's ability to earn in suitable employment of $800 per week. That results in a difference slightly less than $400 per week until 1 October 2000, and one someone above $400 per week thereafter. That is of course above the applicant's maximum entitlement, even taking into account his dependants, but I think it is a proper exercise of discretion, applying the factors urged upon me by Mr Saul, and set out above, to find a net weekly entitlement under s 40 of $200 per week, and there will be an award accordingly under the section from 22nd June 2000 to date and continuing. It will be seen that this is in the event the same result as I would have reached had I accepted Mr Saul's submissions. 52. I make the following findings: 1. Injury to applicant arising out of and in course of employment of respondent on 21 August 1999. 2. Resulting from above injury, applicant has permanent loss of use of left leg at or above knee of 20 per cent from which an appropriate deduction under s 68A in respect of pre-existing degenerative changes in left knee to which such loss is also due is 5 per cent. 3. Resulting from net compensable s 66 loss of 15 per cent as determined above applicant has experienced and does and will experience pain and suffering of a proportion of 1:5 or 20 per cent to a most extreme case. 4. Resulting from above injury, applicant partially incapacitated for work from 22 June 2000 to date and continuing. 5. From 22 June 2000 to date and continuing applicant able to earn in suitable employment $800 per week. 6. From 22 June 2000 to date and continuing applicant's probable earnings but for injury $1,863.90 per week. 53. I make the following award in the applicant's favour: 1. $200 per week from 22nd June 2000 to date and continuing under s 40. 2. Respondent to pay applicant's medical and like expenses under s 60. 3. $11,250 under s 66 for a 15 per cent permanent loss of use of left leg at or above knee. 4. $10,000 under s 67 for pain and suffering. 5. Respondent to pay applicant's costs. I recommend applicant's costs incurred second conference fee of $250 fee and fee for advice on evidence for counsel. Mr M J Bleasel instructed by Firths - the Compensation Lawyers appeared for the applicant. Mr D G Saul instructed by Hunt & Hunt appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.