Hutchesson v Cleanaway [2001] NSWCC 46

Compensation Court of New South Wales

CITATION : Hutchesson v Cleanaway [2001] NSWCC 46 PARTIES : Warren Hutchesson Cleanaway (A division of Brambles Australia Limited) MATTER NUMBER(S) : 58162 of 1999 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/03/01 EX TEMPORE JUDGMENT DATE : 03/15/2000

FOR APPLICANT: Mr R Keller instructed by Stacks the Law Firm with Goudkamp Mahony. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Pearce instructed by Sparke Helmore.

JUDGMENT: 1. In this case, I am satisfied that Mr Hutchesson injured himself as he described in his evidence-in-chief. I am satisfied Mr Hutchesson is an honest witness and that the evidence he gave was doing the best he can and as truthfully as he could. 2. I am satisfied that after having an arthroscopy he has ended up with a permanent loss of efficient use of his left leg, albeit one, if not a great one. He is able to run, ride a bike and lift weights of up to 35 kg which must place stress on his knee. Nevertheless, it is a joint in the body that is an articulated surface and in the end it must have some restriction on it. I find that I accept the opinion of Dr Thompson and that the applicant has a permanent impairment of his left leg at or above the knee of 10 per cent. 3. Turning now to loss of wages, the parties have agreed that the applicant's rate was $496.40 per week. I find that the applicant soon after the clearance of the certificate dated 6 November was able to do some work, and I calculate that to be something in the order of $296.40 per week. So there will be an award pursuant to s 40 from 11 November 1998 to 6 April 1999 of $200 per week. 4. On 6 April, he underwent an arthroscopy and giving him two months to recover, I find that from 6 April 1999 to 6 June 1999 an award at the full statutory rate. Thereafter, I find that there is no economic loss. I therefore hereby order and award that: 5. The respondent pay the applicant as lump sum compensation under s 66 of $7,500 in respect of 10 per cent loss of use of the applicant's left leg at or above the knee. 6. An award pursuant to s 40: From the 11 November 1998 to 6 April 1999, $200 per week on the basis of partial incapacity. From 6 April 1999 to 11 May 1999 $496.40 per week on the basis of total incapacity. From 12 May 1999 to 6 June 1999 $323.90 per week on the grounds of total incapacity. 7. This does not reach the limit pursuant to s 67, there will no order pursuant to s 67. 8. The respondent is pay the applicant's s 60 expenses. 9. The respondent to pay the applicant's costs. 10. Second conference in the sum of $250. 11. Certify for two medico-legal qualifying fees. Mr R G H Keller instructed by Stacks the Law Firm appeared for the applicant Mr J H Pearce instructed by Sparke Helmore appeared for the respondent