Langdon v WorkCover Authority of NSW [2001] NSWCC 81

Compensation Court of New South Wales

CITATION : Langdon v WorkCover Authority of NSW [2001] NSWCC 81 PARTIES : Heidi Langdon WorkCover Authority of New South Wales MATTER NUMBER(S) : 39212 of 2000 JUDGMENT OF: Truss J CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 09/05/01 DATE OF JUDGMENT: 05/11/2001

FOR APPLICANT: Mr J Singh instructed by T H Walker & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Davis instructed by William Clinton

JUDGMENT: 1. In these proceedings the applicant sought an order under s 60 in relation to the following expenses:- · ironing services from 29 September 1999 to 7 February 2001 $895.70 · house cleaning from 27 July 1998 to 16 February 2000 $3,120.00 $4,015.70

2. It was the respondent's case that these services did not fall within the definition of care in s 59(f) or alternatively that if they did, they were not reasonably necessary having regard to the nature of the applicant's injuries. 3. On 3 May 1997 the applicant was working as a volunteer bush fire fighter when she fell out of a truck landing on her head sustaining, inter alia a significant neck injury. On 21 February 2000 in proceedings number 50260 of 1998 Her Honour Judge Quirk determined the lump sum claims under s 66 and 67 and awarded the applicant compensation for permanent impairment of the neck in a proportion of 1:4 and a 10 per cent consequential loss of use of the right arm at or above the elbow. 4. The hearing commenced on 2 February 2001 when documents were tendered but the hearing could not conclude for two reasons, firstly, Judge Quirk's reasons were not available and secondly the decision of the Court of Appeal in Western Suburbs Leagues Club v Everill was awaited. This was an appeal from a decision of mine where I had made an order in the worker's favour in relation to housekeeping and domestic assistance. The appeal was heard on 13 November 2000 when judgment was reserved. 5. When the matter came before me again on 9 March 2001 the Everill decision was still reserved. The applicant gave oral evidence and the matter was again stood over pending the Court of Appeal decision which was handed down on 30 March 2001 (2001) NSW CA 56. When the matter came before me again on 8 May 2001, in view of what fell from the Court of Appeal in Everill the applicant sought, and was granted, leave to discontinue the proceedings. 6. The applicant now seeks an order for costs of the proceedings up to the date of the Court of Appeal decision. It was acknowledged by the applicant's counsel, Mr Singh, that this was an unusual application, in that costs normally follow the event. However, it was submitted on behalf of the applicant that at the time when the application was made and up to the Everill decision the applicant had an arguable case in that there was a division of opinion in the Compensation Court as to entitlement to the cost of housekeeping services exemplified by the decision of McGrath CJ in Hugo v Coles Myer Ltd (25 July 1989, unreported) and Burke J in Olsen v Our Lady of Loretto Nursing Home (1999) 17 NSWCCR 557, and that this conflict was finally resolved by the Court of Appeal on 30 March 2001 when the former approach was preferred namely that s 59(f) does not authorise allowance for household help and domestic assistance as such unless it can be characterised as care for a worker. 7. The medical evidence tendered by the applicant in relation to the primary issue in the case was fairly limited and fell well short of establishing that assistance could be characterised as care. It comprised the following:- (a) A report of 19 February 1999 from Dr Roebuck who, after dealing with the neck and shoulder injuries and giving his assessments said:- These give her considerable interference with her physical capacity both at work and at home and on the open labour market she would have restriction to employability making her fit only for light sedentary work, permanent as a result of injury. She also will require domestic assistance at least to the level of two hours per week indefinitely on a permanent basis. (b) In addition a report of 14 August 2000 Dr Fearnside said:- Mrs Langdon has continued to experience neck pain and pain in her shoulder since the accident and these have been the subject of comment in previous reports. I recommend that it is in her interest that domestic assistance be provided as ironing services on a weekly basis and house cleaning on a weekly basis but I believe that these should be reviewed at the end of the year 2000, that being a generous amount of time to provide such assistance after the surgery. (c) In his report of 29 December 2000 to the respondent which was tendered in the applicant's case Dr Faux said:- It is my opinion that Ms Langdon could undertake ironing, however she would have to do this in a paced manner and it would take approximately four times the usual time required for ironing. In terms of house cleaning and ironing, it is my opinion that she should be assessed by an occupational therapist and undergo a formal functional assessment with a focus on domestic activities of daily living. On the basis of this report I will be able to give you an opinion as to whether she continues to require assistance in these activities. 8. In support of the costs application the applicant's counsel relied upon her evidence that following the examination by Dr Faux a representative from WorkCover attended at her home and had a discussion with her but no evidence was tendered in the respondent's case. 9. I reject the submission by the applicant that until the Court of Appeal decision re Everill the respondent had no proper basis for disputing her claim. On the contrary in my view the respondent was entitled to dispute the claim on two bases, firstly, what was said by the former Chief Judge in Hugo, as well as by Judge Neilson in Watkins v Southern Sydney Area Health Service (12 December 1996 unreported) and Perrott v Lower North Coast Area Health Service (1997) 14 NSWCCR 164, which were referred by the Court of Appeal to in Everill and secondly, whether the evidence adduced in the applicant's case was sufficient to discharge the onus in any event. 10. For these reasons I am not persuaded that I should depart from the normal practice of ordering that costs follow the event. The applicant's application for costs is therefore refused. Mr J Singh instructed by T H Walker & Co appeared for the applicant Mr J Davis instructed by William Clinton appeared for the respondent