Fields v Mount Canobolas Vineyard [2001] NSWCC 57

Compensation Court of New South Wales

CITATION : Fields v Mount Canobolas Vineyard [2001] NSWCC 57 Heather Ruth Fields Philip Leslie Shaw PARTIES : Andrew Geoffrey Oatley Rosalind Joan Oatley T/As Mount Canobolas Vineyard MATTER NUMBER(S) : 38417 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 30/01/01, 7/3/01, 11/5/01 DATE OF JUDGMENT: 05/11/2001

FOR APPLICANT:Mr R I Harrington instructed by McCabe Partners LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T A Gotterson instructed by Vandervords

JUDGMENT: 1. The applicant claims lump sums and weekly compensation under the Workers Compensation Acts in respect of injuries to her wrists, neck, back, legs, hands and feet which she alleged she suffered in the course of and arising out of her employment with the respondent. 2. Mr R I Harrington of Counsel appeared for the applicant and Mr T A Gotterson of Counsel appeared for the respondent. Counsels' addresses have been recorded and in the main transcribed and it is therefore unnecessary for me to refer to each submission merely to ensure that it is noted. 3. The lump sum claims are as follows:- Section 66 lump sums $12,000 in respect of the 20 per cent permanent impairment of the back. $7,500 in respect of the 10 per cent loss of the use or the efficient use of the right leg at or above the knee including loss below the knee as a result of pain radiating down from the back. $7,500 in respect of the 10 per cent loss of the use or the efficient use of the left leg at or above the knee including loss below the knee as a result of pain radiating down from the back. $7,500 in respect of the 10 per cent loss of the use or the efficient use of the right arm below the elbow. $7,000 in respect of the 10 per cent loss of the use or the efficient use of the left arm below the elbow. 4. In the event Mr Harrington did not put the claim in respect of the legs upon the basis of radiation of pain from the back but rather upon the basis of aggravation, acceleration or exacerbation of tarsal tunnel syndromes. 5. No amendment of the Application for Determination was sought, however, Mr Gotterson made no objection to this approach. 6. Having regard to the view to which I have come on either approach it is not necessary for me to re-list the matter to deal with the absence of amendment. 7. The applicant is a 45 year old single woman who returned to the work force after many years of household duties in 1990. 8. In that year she commenced working for the respondent which was establishing a vineyard. She continued to work for the respondent until she left that work in June or July for reasons not associated with any injury. 9. The applicant was a casual worker, initially working for about 3 or 4 months a year, however, by the last 3 or 4 years this had increased to about 10 months a year. 10. The applicant gave evidence, which was supported by a fellow worker, Mrs Roly, that the hours of work were 40 hours per week. Some cross-examination put to her that the number of hours was less, however, no evidence was called to that effect on what was obviously an important issue. 11. The agreed wage schedule showed, on that basis, an hourly rate of $5.00 per hour which seems very low even for casual rural work in 1995. However, Mr Gotterson did not mount any argument that the earnings were inconsistent with a 40 hour week. 12. The work involved five principal operations carried out as the season progressed. (a) Planting vines, which included making a hole with a water powered pogo stick or shovel, bending over planting the vine and tamping it. On a good day each worker would plant about a thousand vines; (b) Pruning vines. This was done with hand held shears. The young vines involved much bending and the older ones bending and more cutting. The applicant is right handed and mainly used her right hand although sometimes her left; (c) Tying shoots. As the vines were pruned the shoots were tied to the trellis by small pieces of thin wire which were twisted in place using both hands. The applicant said that in a day she would tie thousands; (d) Picking grapes. Both hands were used, shears being used to cut the grapes off. The grapes were placed in a bucket which was collected when full by someone else; (e) Chipping weeds with a hoe or shovel. This involved much bending and was hard work. 13. Both the applicant and Mrs Roly said that the work was hard and repetitive. It involved much bending and use of the hands. The land was a former cow paddock, all dirt and was on a hill side. 14. In June or July 1996 the applicant left the region of Orange because of the break up of a relationship she had been in for some 12 months. She found it too hard to remain in the area. 15. The applicant gave evidence that if it had not been for these personal circumstances she probably could have continued to work at the vineyard for a while. She agreed that she did not make any complaint to management of injuries or physical problems and did not consult a doctor until nearly two years after she ceased this work. She did, however, say that she had spoken to fellow workers of physical difficulties. I will return to this later. 16. The applicant gave evidence in chief in respect of symptoms experienced whilst she was working as follows: Q. If I could just deal with your arms for a moment. As you carried out the activities you have described today, did you notice something about your arms. A. My Arms? Q. Yes. A. Yes, they'd get very tired, sore. Q. When did you first start to notice that. A. When I was working at the vineyards, yes. Q. But how long after you started there, did you start to notice that. A. Within the first few months of doing the work. Q. Did that problem stay the same or gradually get worse. A. It just got worse over the years, it was so bad over the years, it wasn't too bad to start with. His Honour Q. Sorry, would you say that again A. It wasn't very bad to start with, but it got worse over the years. Q. What did you notice about yourself, say, at the end of the day when you had been doing the pruning and the tying of the wires when you got home, in respect of your arms. A. I wouldn't be able to left them very high, couldn't do anything. They'd go numb after a while. Q. At night did you start to notice something about yourself. A. Yes, at night my hands and that would just be numb, and then my feet would start to go on me. Q. Just dealing with your hands at the moment. Did that wake you up at night. A. Yes. Q,. Were there some activities which would relieve the numbness. A. Yes, I could wriggle them around and put them in cold water, something like that would sort of bring the feeling back and then they'd start to tingle and the feeling would start coming back. Q. As time went on between 1990 and 1996 did that problem increase, that problem at night. A. Yes Q. How was it by the end of the period that you were there. A. Very bad, really bad, but I just was working at the time, so. She also gave the following evidence: