Compensation Court of New South Wales CITATION : Brownlee v Gillespie Cranes [2001] NSWCC 56 revised - 4/09/2001 PARTIES : Victor Brownlee Gillespie Cranes Nominees Pty Ltd MATTER NUMBER(S) : 38728 of 1999 JUDGMENT OF: Moran J CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/4/01 DATE OF JUDGMENT: 04/24/2001 FOR APPLICANT:Mr. R. Ingram of counsel appeared on behalf of the applicant FOR RESPONDENT:Mr. M. Newton of counsel appeared on behalf of the respondent LEGAL REPRESENTATIVES: JUDGMENT: 1. The applicant in this case, who is now aged 39, was employed by the respondent as a rigger when on 27 January 1995 he suffered injury to his right knee which required surgery under Mr Andrew Turnbull, orthopaedic surgeon. He had as well as a meniscectomy an anterior cruciate ligament reconstruction. He was paid compensation. He tried working at different times as a rigger but it is agreed that the applicant is unfit for rigging work - particularly because it involved working at heights and handling heavy weights and/or chains. He did work as a 'dogman' for a while and he can do some dogman work with help. He has had employment in New Zealand, where he has lived since sometime after the injury - November 1996 - with his defacto wife and two young children. Those children were born on 19 August 1994 and 3 May 1996. 2. The applicant whilst employed at O'Connell Smith, attempting rigging work, suffered a 'twisting' type injury walking down some cluttered steps on the building site after he had been working there for about two months. That injury occurred on about 17 July 1997 and he had an aggravation of his pre-existing knee problem. He was paid workers compensation under the New Zealand scheme and underwent rehabilitation and physiotherapy, and those payments were made until 13 February 1998. The applicant claims weekly compensation under s 40 since that date. 3. Some two weeks after payment those payments stopped, he obtained a job as a sales representative with Homelife Security from about 28 February 1998 to 27 May 1998. It involved a lot of walking, he said, and he suffered stiffness and pain in his knee. It was at that stage that he reached an agreement with his de facto wife that one of them should stay at home with the children and the other work - whoever had the best job should continue and the other stay at home. Since that time the applicant has only had limited employment - in particular, casual work in a restaurant, but that work was really as a doorman. He did do about five days work in May of 2000, but that contract ended at the end of five days, in fact, and he suffered symptoms trying to do rigging work again. The applicant's de facto wife has continued working and he has remained at home - doing occasionally one night a week work as a doorman at a restaurant. 4. I am satisfied that the applicant is capable of earning a living at various employments - not as many as set out in Exhibit 3, the assessment reports by Miss Thompson. There are activities that he could perform in particular as a barman or storeman or kitchen-hand or gardening-type work or in selling or as a surveyor's assistant - a variety of work. It has now been agreed between the parties that had he not been injured he would probably have earned on an average since February 1998 approximately $850 per week up to the present time. 5. I find that despite his disability he has been able to earn in some suitable employment or business since 13 February 1998 approximately $550 per week in those various types of employment which I have just described. In the exercise of my discretion under s 40, I take into account the fact that his work in the building industry does have breaks because of completion of projects et cetera and the fact that he has also taken himself away from Australia to live and work in New Zealand - the opportunity for work being probably not as great as it is here. 6. In the exercise of my discretion under s 40 of the Act I determine the proper sum to award to be $280 per week. 7. For those reasons, I make an award in favour of the applicant under s 40: In the sum of $280 per week from 13 February 1998 to date and continuing together with an award in his favour for s 60 expenses and for costs. MR R INGRAM of counsel appeared for the applicant MR M C NEWTON of counsel 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.