Compensation Court of New South Wales CITATION : Harris v Western Fuel [2001] NSWCC 123 PARTIES : Gregory C Harris v Western Fuel Distributors Pty Limited MATTER NUMBER(S) : 34191 of 1999 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15 May 2001, 16 May 2001 EX TEMPORE JUDGMENT DATE : 05/16/2001 FOR APPLICANT: Mr L Stone instructed by Barry F Cosier & Associates LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S B Marsh instructed by P W Turk & Associates JUDGMENT: 1. This is a case which has taken quite a degree of the Court's time, but I think that the issues that fall for determination come into a reasonably small compass. 2. The applicant who is aged 43, was employed by the respondent as a fuel truck delivery driver and he bases his claim upon an injury in the course of his employment on 28 February 1996, when his vehicle hit a hole in the road and caused him to bounce off the seat and strike his head on the roof of the truck. The only issues for the determination of the Court today relate to the applicant's entitlement to lump sum compensation with regard to impairments or losses to his neck and his left arm, together with a claim if applicable for pain and suffering under s 67. 3. The respondent made it clear that the issue of injury was a live one, and in particular, its consequences. I will deal in reasonably brief terms with the applicant's evidence. His previous industrial history did not have anything of particular moment in it. He joined the respondent in the early part of 1993 and described that his job involved the delivery of fuel orders from the yard to various sites where the customers were, and this entailed him driving trucks such as the tanker he was driving on the day in question, to various places in the area. He described how, on 28 February 1996, he was making such a delivery when he came round a bend and an area of the road had subsided following some weather or other problems, and his vehicle hit the subsidence in the road and he was thrown up against the roof of the truck. He was of the view that he probably hit his head about three times. He was subject to immediate pain in the neck going down to the area between his shoulder blades and he said that he lost the ability to use his left arm for some four days. He got back to the base with some difficulty, got some medical advice the next day from Lithgow Hospital, and ultimately came under the treatment of his general practitioner, Dr Bosanquet, had some physiotherapy and the like. He said that the physiotherapy which he had at Bathurst was helpful whilst it occurred - whilst he had the treatment - but by the time he got home, the benefits from the treatment by the physiotherapist would wear off. 4. Apart from the pain in his neck, he indicated he was getting pins and needles in the hand and arm on the left side and was complaining of loss of strength. Some initial weekly payments were made and he indicated that he had at the relevant time been living on a property with his family where there were some sheep, cattle and horses. He said that he gradually got rid of the stock because of his inability to look after it properly as a result of his injury. He maintained that he was able to do the various jobs around the property, although he was doing them a lot slower and with difficulty. He recalled changing a gearbox in a utility on the property, but he said it took him about four days and he had to do it using levers and jacks with any assistance of his wife rather than doing it in the more normal fashion. 5. He said that he got some guidance from a rehabilitation consultant and he managed to get some work with a Mr Sinclair truckdriving, but was very vague as to when this started. He agreed it could have been in 1996 or 1997. He maintained that this work was unpaid and he outlined in cross-examination in some detail the nature of the duties involved. He had another short period of work with a Mr Armstrong of one or two days and then he got a job with a firm called O'Connells where he is still working as a transport driver on various runs to Sydney. He said that the loading and unloading of the trucks that he was driving was done by forklift and that the only physical activity he had to do was involved in the tying down of the load. 6. His previous sporting activities he indicated as a result of this particular problem had been significantly impeded. He said this involve polocrosse, golf, water-skiing and football. He agreed however that he was now refereeing polocrosse which he said was very different to playing the game, in that the referee did not adopt the physical activities on horseback that the actual players had to do. He said that he found golf was beyond him because he had pain when he tried to swing the club. He outlined inhibitions in the range of movements of his neck. 7. Cross-examination of the applicant was very much directed towards his credit. A number of matters were put to him which I will touch on with respect to respondent's counsel but briefly. These involved firstly the question of whether he was able to ride a horse. It was put to him that in May 1996 he told Dr Bosanquet in his report that he was unable to do so, yet at about the same time he was riding in a fox hunt on the doctor's own property. He was cross-examined about making similar comments about horseriding to other doctors. 8. He maintained the position that what he was trying to say to the doctors was that following his injury, he was unable to ride - as I understand it - in the expert fashion that he was able to ride before. To use his own phrase he was able to "sit on a horse" as distinct from physically riding it in an appropriate fashion. It was also put to him that the doctors were under the impression that he was having - from what he told them - a great deal of difficulty driving even his own vehicle, yet, at the same time he was driving trucks in the course of his employment referred to above. To this he maintained that he thought the doctors were only inquiring about what his range of activities may have been when he was not medication. At all events, continuing the story, he outlined the types of work he was doing for Mr Sinclair and in his present job which he is still continuing. 9. Following the conclusion of the applicant's evidence, a great deal of medical material was put before the Court and in addition, the evidence was given by two investigators and a long period of video material was shown and put into evidence subject to certain objections from the applicant's counsel. 10. I think the most convenient way of dealing with the evidence is to summarise a number of conclusions to which I have come. The first of these is that I think that there is no doubt on the evidence that the applicant sustained his injury as he alleged. There is nothing to contradict it before the Court and the picture is given with total consistency in all the documents that have been put into evidence. I think further, that it is clear that there is abundant medical support, particularly in the early period up to probably around 1998 that the applicant had an ongoing musculoligamentous injury affecting his neck and left arm which resulted from the episode with the fuel delivery truck. 11. The issue in this case is only whether the injury has resulted in permanent impairment or loss in the applicant's neck and/or left hand as the applicant presents at this time. Subsidiary issues which appeared from time to time about whether it was believable that he worked for a long period for Mr Sinclair without being paid wages are not relevant to this issue. The attack on the credibility of the applicant is based as I have indicated above, on a number of matters. The first relates to the horseriding question. The second relates to his ability to drive in the history to the doctors and then in addition, there is the video evidence. 12. I will record for clarity that although it was strongly put that the applicant was not truthful about working for no wages whilst with Mr Sinclair, I am setting this question aside. The argument that one would work even with rehabilitation organised work trial for 12 to 18 months on these sorts of activities for nothing, does in fact strain one's credulity to an extent. However, the only evidence before the Court is that of the applicant which says that he did not get any wages. Therefore, his evidence is the only evidence and I make no finding on the issue at all and I set this question aside on the issue of the applicant's credibility and do not take it into account. 13. As I mentioned earlier, the applicant contended that what he meant to say to the doctors about his riding was that he was unable to ride with his previous level of skill and that he thought the doctors' questions about his ability to do various forms of activities related to what he could do without medication. I found these explanations unconvincing. Whether they were deliberate or influenced by some sort of depressive condition or tangled thought processes I do not determine. The result however I think puts it beyond question that a number of experienced medico-legal examiners did not get from the applicant a full picture of the extent of his activities and ability to do things. This must of necessity cloud the issue as to the applicant's entitlement to lump sum compensation. 14. I would comment with regard to the video material that I found most of this of no assistance at all. The only area that influenced me was the episode of repairing the gearbox with assistance in the warehouse, which demonstrated to me a lack of overt signs of disability, but was not inconsistent with there being an underlying problem in the neck and the left arm. However, it was a picture which, to my mind, was inconsistent with the assessments arrived at by Dr Conrad of losses in the applicant's neck of 20 per cent and of a similar figure in the left arm. 15. It seems to me on considering all the medical material and taking into account the support that the applicant got very clearly in the early period that the doctor who has come nearest to the correct assessment of the situation as I see it, is Dr Deveridge in his latest report. It is in that report that for the first time it seems to me there appears a history that is reasonably consistent with that emerging from the rest of the evidence. I emphasise the word "reasonably". In particular, that report has the history of intermittent consumption of Endone in order to continue work together with other medication. This report has been the subject of some criticism by counsel for the respondent with some force in that the doctor had arrived at the same assessments in his earlier report when he was given a history that the applicant was unable to drive trucks when he was in fact at the time doing so. I propose in the award that I will shortly make to make findings slightly discounted from those arrived at by Dr Deveridge in his last report. These findings will be sufficient to enable the applicant to surmount the threshold in the point of view of s 67. 16. This is an area of the case that has caused me a great deal of difficulty. The extent of that difficulty is largely, to coin a phrase, self-inflicted on the applicant's own part, because of the historical complications which he introduced into his own medical case. Nevertheless, I am accepting that he has an ongoing chronic musculoligamentous problem in the neck and the left arm. He has had it for a considerable period of time, yet it is not that bad in the sense of how it was early in the piece in 1996. There is some evidence of depression, but there is remarkably little evidence as to what has caused it, what has brought it about and whether it is going to be short-term whether it is finished or whether it is going to go on into the future. 17. Certainly, the applicant in giving his evidence did not strike me as being particularly depressed. The applicant's age is significant and I have also considered his evidence as to his interference with his sporting activities. Despite the argument by counsel for the applicant, the position with regard to all of this is further confused by what are the apparent matrimonial problems through which the applicant is presently going. It seems to me doing the best I can that the relativities should be in the approximate area of 1:7. 18. The award I make in the applicant's favour is in the following terms: I find that he received injury to his neck in the course of his employment on 28 February 1996. Under s 66 I find a 15 per cent permanent impairment to the neck - $6,000. I find a 7.5 per cent permanent loss of the efficient use of the left non-dominant arm at or above the elbow - $5,625. Under s 67, I find the appropriate figure to be $7,000. The respondent to pay the applicant's costs. Mr L G Stone instructed by Barry F Cosier & Associates appeared for the applicant Mr S B Marsh instructed by P W Turk & Associates 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. 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