Sunnivora v State Rail Authority of New South Wales [2001] NSWCC 103

Compensation Court of New South Wales

CITATION : Sunnivora v State Rail Authority of New South Wales [2001] NSWCC 103 PARTIES : Iqbal Sunnivora State Rail Authority of New South Wales MATTER NUMBER(S) : 38733 of 2000 JUDGMENT OF: Burke J CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10 April 2001 EX TEMPORE JUDGMENT DATE : 04/12/2001

FOR APPLICANT: Mr R Petrie instructed by McGrath, Dicembre & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D G Saul instructed by Astridge & Murray

JUDGMENT: 1. The applicant seeks compensation by way of lump sums in respect of a claim for 10 per cent permanent impairment of the neck, a 10 per cent permanent impairment of the back and a 15 per cent permanent loss of efficient use of the right leg as such, together with a sum under s 67 in respect of pain and suffering resulting from those losses equivalent to 40 per cent applicable to that of a most extreme case. 2. The claim arises out of an incident on 4 November 1998. The applicant is a revenue protection officer, otherwise ticket inspector, employed by the government railways - the State Rail Authority. On an occasion at 3.45 pm on the afternoon of 4 November 1998, a passenger apparently failed to present a ticket and in the ensuing confrontation, Mr Sunnivora was the victim of sufficient force to deposit him down some stairs. He says he was dazed, but I do not think there was any real loss of consciousness. He thought he was unconscious, but be that as it may, he certainly had a problem with his ankle at the time. The real factual issue was whether he had any problem with his neck or back at or about that time. He was taken I think in the boss's car, ambulance officers attended but nobody knows what they found or of what was complained to them, but he was taken I gather in the boss's car to the nearby medical centre - Dr Chan's practice. He was seen by a doctor - unknown - certainly not Dr Chan. On that day, he got a fairly elegant history of an assault at 3.45 pm, passenger did not present a ticket - he stopped him, apparently he was pushed. He fell down the stairs, twisted his right ankle, was seen by the ambulance and there seemed to be a note "Query, no fractures - illegible", and on examination, the right ankle was swollen, there was a small abrasion on one of the fingers of the left hand. He had a bruised forehead. There was a specific note that there was no loss of consciousness and that x-rays showed no abnormality. He was apparently furnished with crutches and ice packs and told to elevate his right foot. He obviously saw Dr Chan two days later - much similar history. Plaster was applied to the lower part of the leg. There had been radiology which when interpreted showed flake fractures of the talus and the navicular. So he had a sore ankle, there is no doubt about that. He wore the plaster without losing too much time from work, he was off very briefly actually and carried on. He continued to visit the doctors at Dr Chan's practice thereafter. 3. In my view, having perused the clinical notes which are not the most legible document by any manner or means. In my view, while not being too legible et cetera, there appears to be no note whatever in respect of a back or neck problem either on the initial consultations or on several consultations thereafter with the exception of a note on 17 February 1999. Once again, it is not the most legible of entries, but certainly it seems to refer to coughing and to some congestion and appears to carry the note, reasonably legible, "neck N.A.D.". The diagnosis is upper respiratory tract infection which would seem to go with the coughing and congestion and does not suggest there was much wrong with his neck either. So that apart, the records of the practice of the applicant's general practitioners are significantly lacking in any complaint regarding the neck or back at or about the time of this fall. 4. The applicant by some means uncertain, was seen by Dr Qidwai. The form of the report does not suggest that he was referred by the general practitioner. There is no note in the general practitioner's records which would suggest that he was referred to Dr Qidwai. There is possibly some inference that it could have been a medico-legal referral by the applicant's solicitors, except the relevant solicitors were not at that time acting for or on behalf of the applicant, so it is just a complete mystery as to how he got to Dr Qidwai but he did and he saw him on 19 March 1999 by which time we are four months down the track, or a bit more. It records a fairly adequate history of the event at Wentworthville Station, even the time of day, pushed, tripped, twist and the fall down the steps, and certainly a complaint about the right foot and possibly back pains too. That seems to be the better reading of the cryptic note following "had produced right foot pains and taken to Pacific Medical Centre" which was Dr Chan's practice. "X-ray of the ankle is noted as showing flake fractures of the talus and navicular. There was tenderness round the joint"- which was obviously the ankle I would think. "Movements are painful" - which is obviously the ankle I would think. "There is some wasting of the right leg." That seems to be the extent of the examination findings recorded by Dr Qidwai. He saw him again on 20 May, 29 July and 7 August 1999 and the only condition that appears to have been treated or complained of is that of the right foot. 5. The applicant has deposed that he was aware of back and neck pain at the time of this fall. That may well be too, I suppose. However, the first note of a complaint to any doctor is possibly that cryptic note on 19 March 1999 from Dr Qidwai in the interim between the fall in November and that consultation, he had seen his general practitioners on a number of occasions without relevant complaint relating to the back and neck. 6. On the totality of the evidence, I would not be satisfied that the applicant received any injuries to his back or neck in that particular event. However, he did undoubtedly receive injury to his right ankle and the question then becomes - well, what is the degree of the injury? On that, there are a variety of assessments, but a wider variety than usual even. Dr Habib who has seen the applicant on his own behalf assesses a 25 per cent loss of the leg below the knee. Dr Qidwai 15 per cent. Dr Chan initially on 4 October thought he had possibly a 2 per cent loss of the leg overall, but on 15 March this year, Dr Chan revised his assessment and decided that there was no relevant loss. 7. The applicant complains of his ankle. No doubt there was sufficient trauma to it to detach a couple of tendon insertions or something or other a bit of flake fracturing. It sustained reasonable trauma. It is very difficult in those circumstances to note the degree of loss but he has what would ordinarily be a sprained ankle with "a little bit of icing on the cake" as it were because of the flake fractures which nobody suggests is of serious pathological import. I can understand that he would have a ankle that could give some ongoing - more than nuisance value - but not great disability and discomfort. In my view the loss of use of the leg below the knee is 10 per cent. That does not generate a sum sufficient to pass the entry to pain and suffering provided by s 67(2). 8. So, in those circumstances I find: 1. On 4 November 1998, the applicant received injury to his right ankle area. 2. As a result thereof, the applicant suffers a 10 per cent permanent loss of efficient use of the right leg below the knee. 3. The applicant received no injury to his neck or back on 4 November 1998. 9. I hereby order and award that the respondent pay the applicant: 1. A lump sum pursuant to s 66 of $7,000 in respect of the 10 per cent permanent loss of the efficient use of the right leg below the knee. 2. Applicant to have no costs of/incidental to these proceedings. Mr R Petrie instructed by McGrath, Dicembre & Co appeared for the applicant. Mr D G Saul instructed by Astridge & Murray appeared for the respondent.