Downes v Namoi Mining [2001] NSWCC 15

Compensation Court of New South Wales

CITATION : Downes v Namoi Mining [2001] NSWCC 15 PARTIES : Stewart R Downes v Namoi Mining Pty Limited MATTER NUMBER(S) : 2171 of 2000 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/03/01 EX TEMPORE JUDGMENT DATE : 03/01/2001

FOR APPLICANT: Mr A Brown instructed by Reid & Reid LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S L C Flett instructed by Sparke Helmore

JUDGMENT: 1. This is a claim brought by a 49 year old former employee of the respondent, who has no dependants. He is basing his claim for injuries to his back, neck, right arm and right leg upon a series of incidents set out in some detail in par (1) of the application for determination and he seeks weekly compensation from 14 April 2000, which was the date his employment with the respondent terminated, on a continuing basis together with lump sum compensation relative to the losses and impairments which have occurred to his affected areas that I have mentioned. 2. There is nothing material in the applicant's prior industrial history. He had two periods of employment with the mining industry. One in the early 1970's and then from 1988 onwards. In all events, the injuries referred to in the application dated from 1971 to 1998, together with a general allegation of the nature and conditions of his employment. The various incidents were covered in the applicant's testimony and I do not propose making detailed reference to them. There was reference to an injury to the right elbow, but the applicant indicated that after a period this was no longer worrying him. He outlined how, after all these various incidents, he generally got back to work with a period of light duties and then onto his normal duties, although he said in his latter period with the mine, he was having difficulty carrying out his duties and was being assisted to an extent by being carried by his workmates. 3. After his employment ceased, he obtained a job on 6 July last year with a company in the area where he lives doing supervisory work connected with his trade in boilermaking and fitting, and this work which affords him no overtime he says that he is managing. He mentioned that the mine where he was employed has not shut down and that some of the former employees in his trade from the mine are now working for another operation in the town which is owned by the respondent which is actually a project where mining machinery is repaired in an industrial setting rather than in a mining setting. 4. The applicant's evidence was that he understood that those former employees who were working there are being paid at an hourly rate which is greater than the hourly rate which he is getting, but the evidence was not more specific as to precisely what this may have been. I would comment that in giving his evidence, the applicant struck me as being a particularly straightforward and acceptable witness. 5. The medical material which has been put before the court has been noted and this does reveal clear-cut radiological evidence of degeneration in both the neck and the back with some historical evidence of a disc lesion in the low back. It is very significant in my opinion that all the doctors discuss the applicant's position in a very positive way in the sense that there is absolutely no suggestion that on any of the examinations he was anything other than fully cooperative and not demonstrating any form of exaggeration at all. 6. It seems to me on a careful reading of these medical reports with their various assessments of the state of the applicant's neck, back, arm and leg, that the issues that have to be determined initially are the extent of any impairments or losses, and whether or not there is a deductible proportion that has to be established and considered pursuant to s 68A. There is then the issue of pain and suffering under s 67 if appropriate. Finally, the economic issues it seems to me that have to be determined are firstly, what is the appropriate comparable earning figure due to the subsequent shutdown of the mine, then what the applicant's current ability to earn might be and finally whether there are any discretionary matters that should be considered with regard to that. 7. I will deal with these matters roughly in the order that has been outlined. Firstly, as I say, the applicant's evidence as to the various injuries that he sustained was not contested. It seems to me that on his own assessment, the really significant injury with regard to his neck and his right arm was on 5 March 1992, and to his back was on 3 August 1989. However, taking into account the applicant's own evidence and the Court's own awareness of the heavy nature of the duties in the mining industry, I find the comment of Dr Burke in his report that the general nature of the applicant's heavy duties in the mine has played a part in the condition of his back and neck is a persuasive one, and it seems to me that the problems from which the applicant is undoubtedly suffering must be related to both those major incidents to which I have referred and to the general nature and conditions of his employment. 8. It has been put very forcefully by counsel for the respondent that this is a case where not only does s 68A come into play but it is more than the statutory minimum of 10 per cent which the section permits the court to determine. In support of this proposition, it has been pointed out that Dr Rowe for the respondent who appears to be one of the doctors that addresses it very firmly finds a deductible proportion of 15 per cent. There is no mathematical formula for determining these things and much depends on the Court's impression. I am satisfied that both radiologically and on the history there was a pre-existing abnormality within the section which comes into play for the purposes of s 68A. I am influenced in this very much by the radiological findings over the years. However, against that is balanced the applicant's very strong and commendable work history. I have come to the view trying to balance these exercises up, that the overall deductible proportion should be found at 20 per cent. 9. I will deal now with the question of the extent of the payments. Save with regard to the back the variations between the doctors' assessments are not large. Dr Zicat has found a back impairment at 30 per cent. I am troubled in accepting this particular level. It seems to me that an impairment assessed at that point, even if it may be justified from one view on the medical picture, does not really reflect the ability that the applicant had to carry out quite significant duties for a very long period of time. I have come to the view on considering all the medical material that the impairment to the back should be found at 20 per cent. With regard to the neck, I favour the assessment which has support from more than one of the specialists of 15 per cent, taking into account particularly the applicant's own evidence of the restriction of movement of his neck. 10. With regard to his right dominant arm, I think the loss should be found at 10 per cent and I am in that regard impressed by the applicant's own evidence that he has unrestricted movements of the arm and that the symptoms emanating from his neck into his shoulder significantly impede him in holding weights in his arm. This to my mind constitutes a diminution of its effective use. 11. Without setting out in detail the applicant's own picture as to the intermittent problems with his right leg, I find that the assessment of a 10 per cent loss in that regard is a reasonable one particularly taking into account difficulties with stairs and going up hills. The findings that I have made there even after making allowance for the deductible proportion will enable the applicant to surmount the threshold under s 67. 12. I have taken into account a number of factors in the view to which I have come. His age is obviously one of them, together with the fact that the radiological material and the court's own knowledge of this particular problem indicates a strong probability that there will be no real improvement in the future on the problems from which he is suffering. But against all of this must be balanced the fact that the applicant strikes me very much as an extremely practical person who has accepted what has happened to him and has decided to get on with his life without developing any psychological or other complications flowing from these particular problems. I think that the relativities are in the area between 1:4 and 1:3, which I will quantify in a moment in the award which I will shortly make. 13. I turn now to the question of the applicant's entitlement to weekly compensation. The agreed wages schedule indicates that in the employment which the applicant has had since 6 July last year doing supervisory work in his trade, he has earned on average $581 per week. I see within the authorities absolutely no reason to conclude otherwise than that current earning rate should be found to reflect his actual ability to earn. The more difficult problem is the question of the comparable earning figures. These in the wages schedule Exhibit E are said at all relevant times to be $1,209. 14. There is a difficulty with the fact that the mine has closed. Taking into account this fact, it seems to me that the provisions of s 11(1) as they stood and in this context still stand, those give the court an option where the actual employment at the time of the injury no longer exists to find a probable earning figure which adopts a practical relationship to the circumstances of where the applicant lives and his general geographical and industrial area. There is some suggestion that those tradesmen from the time mine who are working in the town in the industrial undertaking repairing mining machinery, are on a wage rate that is something similar to that in the mine. However, there is no precise material before the court. 15. Doing the best that one can on the fairly sparse information that is made available, I propose finding the comparable earning figure at $1,000 per week. From the point of view of the operation of s 11(1), with regard to the difference between the comparable earning figure and the actual earnings, I find no discretionary matters on the evidence that should be taken into consideration. 16. The award I make in the applicant's favour is in the following terms. I find that he received injury to his neck and right arm on 5 March 1992 and due to the nature and conditions of his employment to 13 April 2000. I find he received injury to his back and right leg on 3 August 1989 and due to the nature and conditions of his employment to 13 April 2000. I find at all relevant times the probable earning figures to be $1,000 per week and the ability to earn to be $581. I make an award in the applicant's favour under s 11(1) of $234.70 per week from 14 April 2000 to 30 September 2000, and $237.20 per week thereafter. Under s 66, I find 15 per cent permanent impairment to the neck which after a deductible proportion of 20 per cent gives $6,350. I find a 10 per cent permanent loss of the efficient use of the right dominant arm which after a similar deductible proportion produces $8,467. I find a 20 per cent permanent impairment to the back which after a deductible proportion of 20 per cent results in $12,701. I find a 10 per cent permanent loss of the efficient use of the right leg at or above the knee, which after a similar deductible proportion, results in $7,938. Under s 67, I find the appropriate figure to be $18,000. The usual orders as to costs. Mr A Brown instructed by Reid & Reid appeared for the applicant Mr S L C Flett instructed by Sparke Helmore appeared for the respondent