Brace v Franklins Ltd [2001] NSWCC 35

Compensation Court of New South Wales

CITATION : Brace v Franklins Ltd [2001] NSWCC 35 PARTIES : Lisa M Brace Franklins Ltd MATTER NUMBER(S) : 32022 of 2000 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/03/01 EX TEMPORE JUDGMENT DATE : 03/28/2001

FOR APPLICANT: Mr A Hourigan instructed by Adams Leyland Solicitors. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Best instructed by William K. Chambers.

JUDGMENT: 1. In this case Mrs Brace gave her evidence in a straightforward manner. I accept her as a truthful witness. She did not embellish or exaggerate her symptoms, in fact, she down-played them if anything. She also appeared to me to be a stoic woman who said that she did not run to the doctor every time she had a complaint and, in fact, was reluctant to go to doctors and then only when she had to. Mr Best questioned her on this point saying that if her symptoms were such as she complained of then she could have gone to the doctor. At first she said she did not know that she was entitled to, which I assume she meant that she did not know if the insurance company would pay for her visits to the doctor, and when I put to her that she could get Medicare to pay for it, she agreed that she could have. Nevertheless, as I said, I accept her as a truthful witness and I accept her complaints of pain. 2. Having regard to the medical reports Mr Best, quite properly, did not seriously submit that the injury did not occur in the way that the applicant said she had done it, lifting boxes in March 1993. He urged me to accept the opinions of Dr Skapinker and that of Dr Limbers and faintly that of Dr Potter. Dr Limbers has suggested that there is a 5 per cent permanent loss of efficient use of the right upper limb. Mr Best suggested that Dr Skapinker believed that there was only lateral epicondylitis and not epicondylitis on the inner aspect of her elbow. Mrs Brace, when put to her by Mr Best that very point, said that she only had problems on the outside. Nevertheless, I am satisfied on hearing her evidence and doing the best I can, and taking note of the medical evidence, that she suffers a 15 per cent permanent impairment of her right arm at or above the elbow. 3. Putting it into s 67, Mrs Brace is a relatively young woman with a young baby. She has difficulty with the baby as she is now attending to him and doing her normal household work including ironing. She says she gets her husband to do the heavier jobs to save her suffering any inconvenience because of the injury to her right arm which is her dominant arm. 4. I therefore order an award that the respondent pay the applicant as lump sum pursuant to compensation under s 66 $12,000 in respect of 15 per cent permanent loss of the efficient use of her right arm above the elbow. 5. This then qualifies the applicant for payment pursuant to s 67; epicondylitis as Mr Best has submitted is something that could come and go. I think that the inconvenience is greatest now while she has the young baby, and I think, doing the best I can, that the award pursuant to s 67 would be 10 per cent of a most extreme case. Therefore there will be $5,000 in respect of pain and suffering, being 10 per cent of a most extreme case. 6. The respondent to pay the applicant's s 60 expenses. 7. There will no award for interest. 8. The respondent to pay the applicant's costs. Mr Hourigan instructed by Adams Leyland Solicitors appeared for the applicant. Mr J Best instructed by William K. Chambers appeared for the respondent.