Cossu v Brima Pty Ltd t/as Donut King Carlingford [2001] NSWCC 100

Compensation Court of New South Wales

CITATION : Cossu v Brima Pty Ltd t/as Donut King Carlingford [2001] NSWCC 100 PARTIES : Brima Pty Ltd t/as Donut King Carlingford MATTER NUMBER(S) : 58674 of 1999 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/04/01 EX TEMPORE JUDGMENT DATE : 04/20/2001

FOR APPLICANT: Mr D Stanton instructed by Firths. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Sweeney instructed by Sparke Helmore.

JUDGMENT: 1. In this case Ms Christina Cossu brings a claim for weekly payments subsequent to a loss after sustaining an injury with the respondent to her back in September 1992. Mr Sweeney quite properly drew to my attention the lack of any medical treatment after the initial treatment until quite some time later - that is to say almost six years later in December 1997 or January 1998. Nevertheless, I found Ms Cossu to be a woman whose credit I could accept totally. 2. I found her to be an honest person and I accept her evidence. I accept that she suffered symptoms from her back from that time onwards with various degrees of seriousness. I find also that she had at times through the whole of that period believed what she was told when she initially saw a doctor in 1992, that is she just had some muscle strain. She put up with this muscle strain and, as in the history of Dr Bentivoglio, has said that from time to time or at least four times a year she had more severe episodes. I am satisfied that there is a nexus between her present condition now and the injury that she sustained whilst working for the respondent in 1992. 3. Ms Cossu has an excellent work history. Unfortunately, she did not finish her science degree but nevertheless she has worked almost from the time of her Higher School Certificate until she no longer could work in 1998. In that period on the day that she visited the doctor, Dr Vdarevic, on 27 January 1998 she said on that morning when she awoke she could hardly move out of her bed. Dr Vdarevic then made an arrangement to see a treating orthopaedic surgeon, Dr Bentivoglio, and she has been under that doctor's treatment ever since and indeed has been waiting to enter hospital under the public hospital system. She has been put on the waiting list since that time and is only now in the next couple of months able to get a place to have an operation on her back. 4. I find that Mr Sweeney puts to me that - if I find that there is the nexus that the economic incapacity should be something in the order - that she is capable of earning something in the order of $300 a week. Mr Stanton says that Dr Bentivoglio, who has examined and treated Ms Cossu, has found that the job she had with Arnott's handing out samples of biscuits and erecting displays, earning about $97.70 a week, would be about the limit of her capacity. I am also going to accept Mr Stanton's proposition that whilst the wages schedule says $500 a week the later evidence that he has by a group certificate shows a figure of $558 a week. 5. I am going to find that doing the best I can, at some part-time clerical job - that the applicant would be able to earn something in the order of $150 a week. The numerical difference is $458 a week. This exceeds the statutory maximum for a single person. The awards and orders are as follows: 6. I make award pursuant to s 40 of the statutory maximum from 27 January 1998 to date and continuing. 7. The respondent is to pay the applicant's costs. 8. The respondent to pay the applicant's s 60 expenses. Mr Stanton instructed by Firths appeared for the applicant. Mr P C Sweeney instructed by Sparke Helmore appeared for the respondent.