Kennedy v Begic [2001] NSWCC 157

Reported Decision : (2001) 22 NSWCCR 517

Compensation Court of New South Wales

CITATION : Kennedy v Begic [2001] NSWCC 157 PARTIES : John Francis Kennedy Tony Begic & John Begic t/as A-One Sandblasting MATTER NUMBER(S) : 48693 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10th September 2001 EX TEMPORE JUDGMENT DATE : 09/10/2001

FOR APPLICANT: Mr L Stone instructed by Hannaford Cox Connellan & McFarland LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Snell instructed by Pieterse & Pieterse

JUDGMENT: 1. This is an application by John Francis William Kennedy against his former employers, Tony & John Begic trading as A-One Sandblasting, in which he claims injury on 9 November 1991 when the tabletop of a truck being lifted by a crane fell on him, causing severe multiple injuries, including a crush fracture to the pelvis and back, and abdominal injuries, according to the Application for Determination from which I have just quoted. In consequence he claims weekly payments under s 37 of the Workers Compensation Act 1987 ("the Act") for total incapacity from 30 October 1998 to date and continuing. No claim for s 60 expenses is made in the Application for Determination, such a claim having been struck out therein, but I revealed my intention to make a continuing s 60 order and to give liberty to apply in relation to any dispute that may break out in relation to such expenses to both counsel at an early stage in the hearing, and neither demurred from that course. Interest is claimed on any weekly payments of compensation awarded but I was not addressed as to that. The appropriate course is I think to reserve liberty to apply also in relation to interest, and I shall do so. 2. The issue was kindly identified for me in a manner for which I am grateful by Mr Snell of counsel for the respondent at commencement of the proceedings as being wholly and solely the extent of the applicant's incapacity for work. That was not surprising because tendered as Exhibit A in the applicant's case was a prior consent award in the present applicant's favour under s 66 and s 67 dated 20 February 1995. At that time the parties agreed that the applicant was entitled to the appropriate s 66 lump sums in respect of 40 per cent permanent impairment of the back, 100 per cent loss of use of sexual organs, 18 per cent loss of use of the right leg at or above the knee, 16 per cent loss of use of the left leg at or above the knee, 50 per cent severe bodily disfigurement, 100 per cent permanent impairment of the pelvis, 24 per cent permanent impairment of the neck and 12 per cent loss of use of the applicant's left arm "above" the elbow, to quote the consent award. The sum of $45,000, a relatively large one in proportion to the maximum then prevailing, was agreed as being the appropriate compensation under s 67 for pain and suffering. Interest orders were also made which need not detain me. 3. It is thus apparent from those awards alone that the applicant was indeed severely affected by the accident, the occurrence of which of course was not denied in the respondent's definition of issues, nor was the nexus or causal connection between any incapacity for work I might find in the applicant and that accident. The sole issue for determination by me as a result of the relatively limited variation in the range of medical opinions on both sides of the record in the reports tendered before me (which render it unnecessary for me to trace the applicant's precise injuries) is whether he has been since the date from which compensation is claimed in 1998, totally or partially incapacitated for work, apart from a minor issue as to dependency which arose later. 4. The applicant gave evidence and despite being a somewhat combative witness who tended, as some of the doctors indeed remarked in their reports, to be somewhat garrulous, he struck me as a witness of truth who had indeed made a sincere effort to rehabilitate himself from the effects of his injuries, and has indeed been successful in doing some things which one would not expect a person as severely injured as he to be able to do. I accept his evidence on all relevant issues, and indeed as I apprehended the cross-examination of Mr Snell for the respondent and his address, it is not seriously contended by the respondent that the applicant was not to be believed on his oath; rather it is simply a question of what his own admissions about his activities and the medical evidence amount to in terms of incapacity for work. 5. The applicant was born on 4 June 1949. He is presently separated although he remains married to his wife. She has an 8 year old son from a former union. From the accident until the date from which compensation is claimed, 30 October 1998, it is his uncontested evidence that he and his wife and her child lived together and that he supported both of them from his compensation payments and that they had no other income. A question for decision, to which I shall return later, is however whether the applicant's wife and her child are totally or mainly dependent upon the applicant during the period of compensation claimed, which is to the present time and continuing. 6. The applicant lives on a small property, owned by his son, of about 25 acres. It would appear that at the time of the accident he was however living in Sydney. Before the accident he had left school and undertaken a boilermaking apprenticeship and worked in his trade for years before joining the respondents and suffering the subject accident. The work of a boilermaker is not detailed by the applicant in his evidence, no doubt because it was unnecessary to do so, having regard to the fact that the medical evidence does not anywhere suggest that he was capable of performing the work of a boilermaker at any time during the period of compensation claimed. 7. The subject accident having been much as described in the Application for Determination, from which I have quoted above, on 9 November 1991, the applicant was admitted to Liverpool Hospital where he remained for three months, a relatively long period. During that time he came under the care of a Dr Giblin. I gather he was seen by a number of neurosurgeons but the medical evidence does not suggest that he was treated operatively either by them or by Dr Giblin. His treatment therefore appears to have been conservative. He was discharged home after leaving hospital. Since that time until 30 October 1998, the date from which compensation is claimed here, he received weekly payments of compensation from the respondent's insurer on the basis of total incapacity for work. 8. During that time he went to China a number of times, where he seems to have received some unusual forms of medical treatment by way of being touched with red hot pokers. He was unable to described it in more detail than that, but said (much to his credit I thought) that he experienced considerable improvement, particularly in leg pain, following those procedures. I suppose one's approach to medical treatment has to be in the words of Mao Tse-Tung the former Chinese leader, "Let the hundred flowers bloom", which is to say if it works it is worth trying. That seems to have been the case here. Apart from that, the applicant apparently experienced relatively little improvement in his condition until compensation payments ceased. Certainly there is no suggestion that he performed any work. 9. The applicant had however obtained a taxi licence before the subject injury occurred. Following his reduction of payments in 1998 he seems to have tried to drive a taxi, one gathers in Sydney. He says, and the evidence is all one way about this, that he was unsuccessful in doing so, finding that he could only work for a couple of hours in a 10 hour or 12 hour shift. It was not economic, he said, because he had to pay more to the owner than he received by way of fares, so he gave it away. He has since lost his taxi licence as a result of being unable to pass the necessary medical requirements, although he is unable to say exactly when that occurred. As I shall reveal, the final opinion of the respondent's medical witnesses is in any event that he is unable to work as a taxi driver, as a practical matter, at the present time. 10. The applicant however is remarkably active on his son's property where he now lives. He is able to do such extraordinary activities as lifting fence posts and fence rails and digging holes for fence posts. This he does by means of a special crowbar and shovel about 1 metre long which I gather he has constructed, or had constructed, for the purpose, so that he is able to work effectively on his knees. He admitted that he had taken some years to build a fence on his property of a few hundred metres. It seems to me that this does not in any way represent activity which an employer would find worthy of remuneration. The same, it seems to me, applies to his other activities on the property, which seem to involve things such as care for a sheep and a couple of ostriches owned by his son, and apparently at an earlier time, care of a larger number of ostriches which the son had purchased in an unsuccessful economic venture. Evidently, it is clear that the applicant is able to perform bending and heavy lifting on occasions on the property. He says - and he is uncontradicted in this - that he does this gradually at his own pace and rests when and where he is able, principally by lying down in the very spot where he feels the pain on the property, rather than returning to the homestead. He says this is not something he could do for an employer. 11. The applicant still complains of intractable pain in various parts of his body, as I understood his evidence, but in particular in his low back. As I shall reveal when discussing the medical evidence, there is a concession by one of the respondent's medical witnesses (which seems to be well based) that the applicant's low back pain is the result of alteration of his gait, presumably because of his pelvic fracture sustained at the time of the accident, which established by the reports of Dr Giblin, his treating doctor at the time, to which I shall come in a moment. 12. The applicant was effectively cross-examined by Mr Snell of counsel for the respondent, who searchingly put to the applicant a very large number of matters based on the medical evidence. Mr Snell repeatedly put to the applicant that he could perform some form of remunerative activity, perhaps in a factory on light assembly work which did not involve heavy lifting and bending, and which involved some breaks for rest. The applicant protested that he would be unable to do such work, basically because he did not think that he could attend an employer for economic hours, because one day his pain level would enable him to attend work at 8 o'clock in the morning, but that on another day he may not be able to do so until 9 or 10 o'clock. This, combined with the medical evidence which I shall shortly discuss, seems to me to amount to the applicant having no economic capacity for work. 13. Mr Snell also asked the applicant about his payments to his wife. The applicant conceded, both in evidence in chief and in cross-examination, that since his payments were reduced in October 1998 to a level of $165 per week on the basis of partial incapacity for work, as evidenced by a letter to him from the respondent's insurer which was Exhibit F, he has only paid small amounts irregularly to his wife by way of support for her and her son. The reason for this, he said, was that he only had $165 per week to live on. When asked in cross-examination he said that he was not in receipt of any income from Social Security or elsewhere. This state of affairs I do not find in any way surprising. The applicant said, and I accept, that he made a promise to his wife, which he had been unable to keep, which was, he implied, that he would support her properly. This is something he was doing, on his own uncontested evidence, until the date when compensation payments were reduced in 1998 as above. 14. I gave the applicant leave to re-open because it seemed to me that within s 17(1) of the Compensation Court Act 1984 it was not possible to decide the case on the true merits and justice of the case until his evidence was clarified as to the exact chronology of his cessation of full support for his wife and her child. It became clear from his further evidence on this subject that such cessation, and the wife's subsequent receipt of Social Security payments in order to live, only took place after his payments were reduced in 1998, on the date from which compensation payments are claimed in his case. I shall deal later with my conclusions on the dependency issue. 15. Coming to the medical evidence, Exhibit B is the reports of Dr Michael Stuckey, orthopaedic surgeon, qualified by the applicant's solicitors, dated 27 January 1995, and 9 and 16 August 2001. Shortly, it was Dr Stuckey's view throughout that the applicant was not only unable to return to work as a boilermaker but would be virtually unemployable in any situation because he is unable to maintain any position for a significant length of time. This opinion is contained in the fourth last paragraph on p 4 of his first report and he did not vary it in any of his subsequent reports to any substantial degree. 16. Exhibit C is the reports of Dr W.G.D. Patrick, general surgeon, dated 30 January and 17 February 1995, 6 August 1999, and 27 August 2001. Dr Patrick, it is enough to say, was of the same view as Dr Stuckey as to the applicant's capacity for work. Neither doubted the connection between this incapacity and the subject accident. 17. Exhibit D was a large number of reports of mainly historical significance from Dr Matthew Giblin. They make it clear that in the original accident the applicant had quite a severe fracture of the pelvis, abdominal injuries and a fractured thoracic spine. This information is in the first sentence of the first report of 18 May 1992 of Dr Giblin. Dr Giblin's last report is dated 1 March 1994 and hence does not advance the dispute presently before me, which is the applicant's capacity for work, if any, since 1998. However, the reports do make it clear that the applicant had severe injuries in the accident resulting in particular in a cervical disc lesion, confirmed by MRI scan. Those injuries of course sounded in the s 66 and s 67 award which I have set out above. I do not think there is any real contest in the medical evidence in this case that they are severe and create a substantial degree of incapacity for work. 18. Exhibit 1 is the reports of Professor Robin Mitchell. In his first report of 30 July 1998 Professor Mitchell remarks on p 3 that he thought the applicant capable of managing a taxi-driving business, noting that the applicant was then talking about buying a cab in Sydney and working as a taxi driver, he having sold a taxi in Mudgee. The applicant indeed was cross-examined about this and said that his intention at that time, which Professor Mitchell apparently had misunderstood, was to go to Sydney and buy a cab but to put a driver (or his son) in it as an income rather than driving it himself. I accept that the applicant's evidence is true about this. Professor Mitchell remarks in the second last sentence on p 4 of that report that the applicant's low back was the main area of pain and that he, Professor Mitchell, would accept that this was due to degenerative changes resulting from disturbances in the applicant's gait, I gather as a result of his fractured pelvis. This confirms that the applicant's low back pain is the result of the subject accident, to my mind. 19. In his report of 31 May 2001 Professor Mitchell remarks on p 2 that the applicant told him that he had lost interest in taxi-driving and intended to stay on his farm. On p 3 of his report of 31 May 2001 Professor Mitchell retracts his previous statement in his report of 13 May 1998 that the applicant could function as a taxi-driver or driving instructor. On p 4 of the same report he confirms that the applicant is not now physically capable in his view of being a taxi-driver. On the same page a little further up Professor Mitchell remarks that he no longer thinks the applicant is fit for any useful employment, but remarks that he could possibly get some part-time work as he is anxious to keep himself fit. Further down the page he remarks that he does not think the applicant is capable of any useful work. This effectively seems to me to amount to a concession of total incapacity, notwithstanding the view that some part-time work for the applicant to keep himself fit would be possible. 20. Exhibit 2 is the reports of Dr A.S. Prakash, orthopaedic surgeon. In his report of 30 July 1998 Dr Prakash remarks on p 5, the last page, that the applicant is fit to establish a driving school and to give driving lessons, and on the applicant's intention to purchase a small motel in Mudgee, which would be run by his family. The latter of course, insofar as it talks about a motel being run by the applicant's family rather than himself, was not relevant to his capacity for work, but certainly Dr Prakash thought at that time that the applicant could do some useful work. However, he too retracts that view in his report of 31 May 2001 at p 6, where he remarks that he does not think the applicant is fit to give driving lessons, as he proposed to do on the previous occasion when he saw him. He says that the applicant continues to be troubled by pain in the low back and has a shortened limb and is no longer capable of being a taxi-driver. He said that in view of the fact that the applicant is 51 years of age it was his, Dr Prakash's opinion that he would find it difficult to get any useful employment. This too seems to me to amount to a concession of total incapacity for work. 21. Exhibit 3 is the large volume of material from a body known as the Vocational Capacity Centre. The first report in the bundle is a report of Mr Peter Defina, clinical psychologist, on an assessment of 31 May 2001. At p 10 Mr Defina speaks of the applicant having vocational possibilities in a large number of areas, including clerical sales and service areas, but only after remarking that "at present, I do not believe that Mr Kennedy is suitable for employment". It is hard to know whether Mr Defina is saying that the applicant is or is not presently fit for work of any kind from a psychological point of view. I rather think the latter. Assuming however that the former is his opinion, it seems to me to be effectively contradicted by Professor Mitchell and Dr Prakash, and I reject that view, if indeed it is Mr Defina's current opinion, although I suspect it is not. The other evidence in the bundle simply amounts to a number of suggestions in a further report by Mr Defina as to occupational groupings which the applicant could enter. I think such possibilities are theoretical and do not represent the applicant's real capacity for work in any way, with due respect to Mr Defina. 22. The old case of Ball v William Hunt & Sons Ltd (1912) AC 496 in the House of Lords establishes that total incapacity for work occurs when a worker cannot sell his labour on any labour market reasonably open to him or her, and that partial incapacity for work occurs when the amount for which a worker can sell his or her labour on a labour market reasonably open to him or her is less than it would have been, but for the subject injury. Applying that test, which has been regularly endorsed in venerable Australian authorities such as Ward v Corrimal Balgownie Collieries Ltd (1938) 61 CLR 120 by the High Court, it seems to me on the medical evidence and his own that the applicant is, and has been since the date from which compensation is claimed in 1998, totally incapacitated for work. 23. It should be appreciated in this connection that the expression "suitable employment" in s 40 of the Act which covers compensation to partial incapacity for work, except in circumstances covered by s 38, is governed in turn by s 43A which provides that suitable employment must be determined having regard to a list of enumerated factors, for purposes of s 38, s38 A and s 40 of the Act. These factors include the nature of the worker's incapacity and pre-injury employment, his age, education, skills and work experience and his place of residence as well as other matters. 24. Here it seems to me that in 1998 when it reduced the applicant's weekly payments on the basis of alleged partial incapacity for work, the respondent effectively had to take him as it found him, which was here in Mudgee with skills which enabled him to engage in boilermaking work for which he is incontestably no longer fit. Apart from the applicant's admission that he had done one year of a visual arts course at Nepean College of Advanced Education - very successfully, I might add - nothing was put to the applicant in cross-examination as to any other work experience he may have which would fit him for suitable employment. It seems to me that a worker in his situation with the injury he has and the effects it creates is most unlikely to obtain suitable employment of a remunerative kind in Mudgee. The same, I think, would be the case were he resident in Sydney, as he was in 1991 when injured, in any event. I regard the applicant as totally incapacitated for work at all material times. 25. The next question is that of dependency. That is governed for the purposes of this case by s 37(4) of the Act which provides: For the purposes of this section, a person is a dependent wife, husband, de facto spouse or other family member, child, brother or sister in relation to a worker, if the person is totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or (whether married to the worker or born before or after that date) becomes so dependent after that date. 26. The expression "child" is defined in s 37(7)(b) as including: A person under the age of 16 years to whom the worker stands in the place of a parent which would cover the applicant's wife's child of her former union before and, in my view, at the time compensation payments were reduced in 1998. 27. S 37(4) has been construed by Judge Johns in Ritchie v Wambo Mining Corp Limited (1995) 12 NSWCCR 273 as speaking at the date weekly payments become payable and thereafter, rather than as at the date of injury, and that with respect seems to me to be the correct interpretation of the section, notwithstanding the contrary decision of Judge O'Meally in Taylor v Merck Sharpe & Dohme (Aust) Pty Limited (unreported no 4357 of 1993, 8th December 1993). That means that I must initially look at the situation as at the date from which compensation payments are claimed, which is 30 October 1998, rather than as at the date of injury, 9 November 1991. If I find that persons were totally or mainly dependent on the applicant as at that earlier date, I must then ask whether that situation changed thereafter. 28. The requirement that a wife or a child be totally or mainly dependent upon the worker is to my mind satisfied in this case as at the date of claim for compensation just mentioned because the applicant's evidence, made clearer by the evidence he gave when I permitted him to reopen (for reasons set out above) is that until then he was receiving compensation on the basis of total incapacity for work, and he and his wife were living together off that money and she was receiving no other income. It seems to me that as at that date his wife and her child were totally or mainly dependent upon him, probably the former. Thereafter, following and, he said and I have no reason to doubt it, because of the reduction in his weekly payments, his marriage ended, in the sense that he and his wife commenced living in separate abodes. He thereafter, following a reduction of his compensation in 1998 to $165 per week, supported his wife and her child irregularly as he was able, in small amounts most months and none at all some months. That situation has continued until the present time. 29. The applicant a couple of months ago told his wife that she would be better off getting on with her life, and says on that basis that his marriage finally ended at that time. He and his wife apparently have, although they have been living apart, taken trips to such places as Jenolan Caves together as man and wife. He said, as I have already indicated, that he made a promise to his wife at an earlier time that he could not keep, which was to support her properly. It seems to me that this has been his intention right up until the present time. 30. The question is whether the applicant's wife's receipt of Social Security payments, claiming in all probability, according to the applicant, that her child is dependent upon her, displaces the situation which existed at the time compensation payments were reduced in 1998, which was in my view that his wife and her child were totally dependent upon him. I think that situation has been displaced to some extent because obviously the applicant's wife has received some money from the State in order to keep herself, by necessity as a result of the applicant's reduced economic circumstances in my view. Nevertheless, that does not seem to me to amount in fact or in law to a reduction in the wife and her son's dependency upon the applicant below a level where they are still mainly dependent within s 37(4) upon him. They are in my view still mainly so because he has continued to support them, as he has at all times intended to do, though to a greater extent than he has been able to achieve, and because the payments they have also received from the State have not been by way of remunerative income, but only by way of while I think I may know is a relatively small sum by way of payments resulting from the applicant's inability to support them, although the exact level of those payments was not disclosed by his evidence. 31. This approach is supported by authority in this Court. In Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381 at 383-384[79] Walker J referred to Fatovic v Standard Telephones & Cables Pty Ltd (NSWCC, no. 2892/89, 4/3/91, unreported) in which Burke J traced a line of authority to the effect that benevolence from relatives, friends and the State after injury to a worker does not necessarily affect dependency: see Arfjes v Kearney (1975) 180 CLR 199, TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 and McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360. Walker J referred also to the decisions of O'Meally J in Warrender v Orange City Council (NSWCC, no. 3390/87, 29/9/97, unreported) and Bishop v Bucciarelli (NSWCC, no. 8711/87, 11/3/98, unreported) and of Moran J in Dunn v Sydney City Council (NSWCC, no. 6169/92, 7/6/93, unreported). Some (but not all) of these cases concern death benefits rather than s 37(4). However in Maras v Broken Hill South Ltd (1960) WCR 164 Wall J allowed a claim that a worker's mother was "mainly dependent" under s 9(1)(c) of the Workers Compensation Act 1927, the statutory predecessor of s 37(4), despite her receipt of a social security pension. Every case must be examined on the evidence in it, dependency being a question of fact, but I think these authorities support the approach I have taken. I think the "or" between "totally" and "mainly" in s 37(4) is clearly disjunctive in context, so "mainly" must connote a situation where some support from other sources exists; otherwise dependency would be total. In common with those who have taken the same approach in the cases I have cited, I think in this case that the social security pension of the estranged wife does not prevent her being mainly dependent upon the applicant. 32. At one time the applicant remarked in cross-examination somewhat petulantly that for all he knew his wife could have a job, but he said that he had no reason to believe that that was so, in a question I asked him. If it afterwards becomes apparent from investigations that the applicant's wife does have a job, of course the respondent may always make application to reduce the weekly payments the applicant is receiving and, indeed, if it appears that from the respondent's enquiries that the applicant's wife had a job before today's date, at some future time my present award in relation to the past can always be reconsidered on appropriate application. It is my view nevertheless on the evidence before me today that the applicant's wife and her child remain mainly dependent upon him and it is therefore appropriate to award weekly payments during the period claimed at the rate appropriate to a dependent wife and one child. 33. It was not contested by the respondent that the applicant's wage schedule, which was Exhibit E, is sufficient to support an award of weekly payments compensation at the maximum rate for an adult worker with a dependent wife and child, should that be appropriate. 34. I make the following findings: 1. Injury to applicant arising out of and in the course of employment of respondent on 9 November 1991. 2. Resulting from such injury applicant totally incapacitated for work from 30 November 1998 to date and continuing. 3. From 30 November 1998 to date and continuing applicant has had mainly dependent upon him a wife and a child in relation to whom he stands as a parent. 35. I make the following award in the applicant's favour: 1. $389 per week as adjusted from 30 October 1998 to date and continuing under s 37. 2. Respondent to pay applicant's medical and like expenses under s 60. 3. Respondent to pay applicant's costs. Recommend such costs include fee for counsel for advice on evidence 4. Liberty to parties to apply on seven days notice as to s 60 expenses or interest. 5. Respondent to have credit for payments made to the applicant to date. Mr L Stone instructed by Hannaford Cox Connellan & McFarland appeared for the applicant. Mr M Snell instructed by Pieterse & Pieterse appeared for the respondent.