Knight v State Transit Authority [2001] NSWCC 72

Compensation Court of New South Wales

CITATION : Knight v State Transit Authority [2001] NSWCC 72 PARTIES : David Alan Knight State Transit Authority MATTER NUMBER(S) : 45805 of 1999 JUDGMENT OF: Burke J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 8 May 2001 EX TEMPORE JUDGMENT DATE : 05/08/2001

FOR APPLICANT:Mr B Hughes instructed by Steve Masselos & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Hickey instructed by Sparke Helmore.

JUDGMENT: 1. The applicant, now aged 35, seeks weekly compensation in respect of incapacity alleged from 5 January 1999 to date and continuing, together with lump sums pursuant to s 66 in respect of an 18 per cent permanent loss of efficient use of the right leg at or above the knee and a 16 per cent permanent loss of efficient use of the left leg at or above the knee and for some reason or other one claim pursuant to s 67 equivalent to 50 per cent of that of a most extreme case. Either loss would of itself pass the necessary threshold of s 67 and they are well and truly separate injuries. However, nobody was really concerned much about that. 2. The applicant alleges his incapacity and losses result from two discrete injuries - the first on 3 July 1996 when in the course of playing a game of tennis he slipped, fell onto his right knee and had an onset of pain. He did not lose any time from work at that time. He continued to work as a bus driver for the respondent and then on 25 August 1998 alighting from his bus - which had apparently been sideswiped - a little hurriedly his left foot got caught on the step and he twisted the left knee - causing a fairly marked onset of pain. On this occasion he did lose some time from work. He consulted his general practitioner, Dr Doctor the following day, 26 August 1998. He was certainly then recorded as complaining of pain and locking in the left knee on and off for some years. No particular account of that incident - though it was reported virtually contemporaneously to the respondent and he was off for about four weeks and paid the entitlements during that period. 3. The applicant had commenced work with the respondent in November 1995 and was stationed at the Port Botany Depot. He worked split shifts as he told Dr Patrick in history - four hours on, four hours off, four hours on. In other words, an 8 hour day spread over 12 hours with a decent break in the middle. The applicant having resumed after those few weeks off following the 1998 injury to the left knee continued to work as a bus driver. He was basically on the airport run. He had apparently been brought up in that Illawarra type area and he had applied for Port Botany because he knew the area and he particularly liked the airport run. He resigned on 4 January 1999. The written resignation obviously indicating some displeasure on his part. He was apparently not going to be allocated the airport run thereafter. The applicant says his knee was also affected - though he did not mention that at the time. 4. The applicant was off work for a couple of months and was then employed by Greyhound Buses - did that for 7 or 8 months. That was rather stressful to both knees and he found his knees were a considerable problem, increasingly so over the period of employment, and they became such that he decided he would resign from the employment specifically because of his knees. The applicant then had a period of doing some work estimated at about 3 months for a friend of his, Stuart Radcliffe, who had a cleaning contract. In that he was engaged for up to 60 hours a week. It was unpaid though some payments of an indefinite amount were made to his family during that time he himself being in receipt of unemployment benefits from the Department of Social Security. 5. When that contract came unstuck he was off work for a fairly long time and then late September, I would think, of 2000 he came into the employ of West Bus - still as a busdriver. He is still there, still working. He works up to 100 hours a week. 60 to 70 hours a week is not uncommon. The wage schedule tendered in evidence shows income between the week ending 4 October 2000 and the week ending 11 April 2001 ranging between about $184 up to $1,553. So sometimes he earns - the schedule itself shows deficits and surpluses compared to the probable earnings with the respondent from time to time - overall a deficit. 6. The first problem is what is wrong with Mr Knight? As far as the right knee is concerned, the one that was injured when he fell playing tennis, the applicant's primary allegation is that that injury arose in an ordinary recess being that 4 hour break in the split shift and that his entitlement arises under s 11 of the Act. Now there are a number of legal problems that appear to be presented in that context. S 11 requires to fall within its ambit that the injury occur during a period when the worker is temporarily absent from the place of employment. The evidence is that the tennis court in question is within the premises of the Port Botany Depot of the respondent. It is difficult to envisage an absence from the place of employment while the applicant remains within the confines of the place of employment. It appears he was probably at a different part of the premises to those that he usually frequented. I would assume from time to time there are other parts of the premises which he did not usually frequent which he would attend. 7. In any event, even assuming for the moment that Mr Knight was temporarily absent from his place of employment, s 11 goes on to require that the injury occurred during an ordinary recess. An ordinary recess, what constitutes such, has been the subject of some consideration by the Courts. Drummond v Drummond 1960 Victorian reports 462; Landers v Dawson - also a Victorian case, ultimately reported in 1964 110 CLR 644; and Tooth & Co v Injac, a case before the New South Wales Court of Appeal reported in 1994 10 NSWCCR 437 - all deal with this concept of 'recess' and it is a matter that was touched upon also in Warrel v Longworth 2000 20 NSWCCR 400. Tooth v Injac was not dissimilar to the current case and the worker there worked a split shift, had a two hour break between the two parts of the shift. Mahoney JA said that a two hour break did not in his view constitute a recess at all - ordinary or otherwise. A recess was a short intermission in a continuous period of employment for rest and recreation such as the usual morning tea break, lunch break - things like that. 8. A four hour gap between two periods of work does not, in my view, fall within the ambit of an ordinary recess. Even assuming that not only was the worker temporarily absent from his place of employment and that it was during an ordinary recess, s 11 then requires that the worker suffer 'personal' injury. 'Injury' itself is defined in s 4 of the Act. It is defined in three elements: personal injury; contraction of a disease; aggravation of an existing disease. The legislature in s 11, as in the preceding s 10 (the 'journey' provision), limit the consequences of any particular injurious event to that of 'personal' injury - one element of the definition of 'injury'. Broadly speaking, if the consequences of the injurious event be the aggravation of a pre-existing disease, it does not fall within the ambit of personal injury - if so, there would have been no need to add the subparagraphs b(1) and b(2) to the definition of 'injury' in s 4, personal injury already having been defined in paragraph (a). 9. The current edition of Mills Workers Compensation practice book draws this distinction: that it is only the element of personal injury, as distinct from disease cases, that are covered or fall within the ambit of s 11. It is a view also expressed in Armao v Ladue Holdings 1992 8 NSWCCR 440, a 'journey' case where the similar restriction to personal injury in s 10 was considered and held to exclude either the contraction or the aggravation of a disease from the concept of personal injury. Presumably then, the worker would fail in the application of s 11 and so rely on the ordinary entitlement of arising out of or in the course of' the employment. Now, the applicant clearly was not in the course of his employment; he was not doing anything that he was paid to do; he was not working; he was not doing anything reasonably incidental to his work. He was not doing anything within the Humphrey Earle & Speechly test of such things as he was required, expected or authorised to do. 10. 'Authorised' was explicated in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 - also reported in 1992 8 NSWCCR 242. "Authorised"' does not mean passively permitted. It means "actively encouraged". There is no indication in the evidence that there was any inducement or encouragement offered by the employer to his staff to the applicant in particular to play tennis on the tennis court. The fact that the tennis court existed within the premises of the Port Botany Depot could suggest some implicit availability - but to whom, when and in what circumstances that facility was available is just not explicated, and I could not on the face of this evidence think that there was any particular inducement offered to the applicant to use that facility in this break between shifts. The injury did not arise out of his employment. It was not because of something done in the course of the employment or of some factor to which he was exposed by virtue of the employment. 11. The fact that the applicant was still on the premises of the respondent at the time of injury could suggest that it was in the course of the employment. Miller Hotels v Tunks 1973 WCR 154 a decision of the Court of Appeal and Alcatel v Griffiths 1997 15 NSWCCR 390 were both cases involving injury on the premises of the particular employer. The distinction sought to be made was as to whether or not the premises always retained the character of place of employment - as distinct from a place of entertainment. That was also considered in Worrell v Longworth - previously mentioned. In my view, if the applicant availed himself of any facility provided by the employer, it was not an incident of his employment; it was not while he was working. The premises were then being used as a means of recreation by the worker for his own personal benefit. I therefore do not feel that the injury to the right knee which occurred on 3 July 1996 occurred on while the applicant was temporarily absent from his place of employment - nor during an ordinary recess - nor did it result in personal injury - nor did it arise out of or in the course of his employment with the respondent. In my view, the consequences of that incident are not compensible. 12. Just what is wrong with the knees? The right is not really a matter of concern - but, actually, both knees seem to have much the same problem from the view of the doctors. Dr Patrick canvasses osteochondritis, chondromalacia, osteoarthritis - patently regards the conditions as being pre-existent, bilateral and aggravated by the incidents upon which the worker relies. He is the source of the assessment of the losses as claimed: 18 per cent of the right leg and 16 per cent of the left. Dr Waller - to whom the worker was referred by his treating doctor - diagnoses, in effect, a chondromalacia patellae with a consequent patello femoral dysfunction that is fairly prone to the development of osteoarthritis - likely to be pre-existing in both knees, but probably exacerbated by the injuries. It seems fairly clear that the condition pre-existed since he assesses the losses at 15 per cent of each leg and allocates 33 and one-third percent to a sort of type of s 68A deduction, being the responsibility of the pre-existing condition - rather than the effects of injury. 13. Dr Marsden notes that the applicant gave a history of having had some ongoing problem with arthritis behind the knee cap - although strangely, I think, Dr Marsden is the only one who does not find crepitus in one knee or both. Dr Marsden regards any temporary stresses to either knee by each of the incidents would and did, in his view, resolve in the short term. The underlying constitutional disorder of course continues to exist, needs periodic medical monitoring - but there is no ongoing nexus to employment injury. 14. Dr Roth seems only to be concerned with the left - which is the knee of more importance at the moment, having regard to the right knee not being compensible. He thinks there is some degeneration of the left lateral meniscus. The residual symptoms are related to patellofemoral dysfunction - much as Dr Waller before him - would expect the symptoms to gradually lessen, anticipated that there would be little or no permanent impairment. He thought there was a condition. There had been some exacerbation. He thought it was likely to be transient. 15. Dr Holt diagnoses bilateral retropatellar chodromalacia - probably pre-existing either injury - exacerbated by the injuries. He seems to suggest a 10 per cent loss of each leg with what appears to be a 50 per cent s 68A deduction - half due to injury, half due to the underlying condition. Dr Thompson thinks the right is retropatellar chondritis with a possible articular flap - it is also mentioned in some of the radiological ultrasound investigations. The left - probably osteoarthritis. Dr Thompson has obviously read some of the law on 'ordinary recess' and what is an 'authorised ' activity such as to fall within the course of the employment because he determines that the right is compensible if the tennis was 'encouraged' by the respondent - which is not a bad summary of the law in many respects. 16. There have been a series of radiological investigations. Dr Korber, reporting on bilateral MRIs, diagnoses, in effect, chondromalacia and patellofemoral dysfunction, much as Dr Waller and Dr Holt - probably - had before him. He thought the indications radiologically were indicative of -but not pathognomonic of - patellofemoral dysfunction. A number of the clinicians think that is an appropriate conclusion. Dr Schnier also did bilateral MRIs of the knees, diagnosed chondromalacia patellae - which was an element of the diagnosis of the majority of the doctors. Overall, it would seem to me that the applicant suffers a chondromalacia of both knees and a patellofemoral dysfunction. The conditions were pre-existing - but aggravated or exacerbated by the incidents. The right knee, occurring in non-compensible circumstances, is excluded from compensation. 17. The left knee was an injury 'in the course of'. The assessments of the impairments or the loss of the left leg vary from the 15/16 per cent of Dr Waller and Dr Patrick to the 5 per cent of Dr Marsden - with another 5 per cent from Dr Thompson and what appears to be a 10 per cent from Dr Holt. There is also in evidence the medical panel which certified to a 15 per cent loss of the right and a 10 per cent loss of the left. Those collection of assessments, it seems to me, the medical panel is round about the middle of the field - between the lowest and the highest - and I would think the applicant presently suffers a 10 per cent permanent loss of efficient use of the left leg at or above the knee. 18. On the s 68A question a number of the doctors deal with it directly. Dr Patrick refers to the pre-existing condition but then says his assessments are independent of it - so one cannot get any gauge as to the relativities that he thought pre-existing condition and the trauma played. Dr Waller has suggested 33 and-a-third per cent is due to the underlying condition. Dr Holt and Dr Thompson seem to suggest 50 per cent. By and large, when assessing a s 68A component one has regard to what is the underlying condition and the degree of trauma to which it has been subject. If there is a mild underlying condition and a substantial trauma you would tend to think of the deductable proportion as being fairly small. If both are mild, both the underlying condition and the degree of trauma - well, in this case, as far as the left knee were concerned, it was a twist of a knee alighting from a bus, a not substantial trauma. One finds some difficulty in distinguishing which played the greater part. I think the doctors who have assessed a 50 per cent deductable proportion are correct. Therefore, as a consequence of the relevant compensible injury, the applicant suffers a residual 5 per cent permanent loss of efficient use of the left leg at or above the knee. 19. The applicant claims weekly payments from the time that he voluntarily resigned from the respondent - the day after, actually, 5 January 1999. He has been working with the current employer, West Bus, since very late September 2000 - been there 6/8 months. The wage records show a considerable fluctuation in income - as I said, from, I think, the lowest week was $184, the highest $1,550 odd. Some weeks there is a deficit 'compared to probable earnings' with the respondent - some weeks a surplus. The earnings appear to depend upon the availability of work not the applicant's capacity to do it. The applicant has said he could work up to 100 hours - is perfectly happy to do 60 or 70 hours a week. On occasion he does do those things. On occasion that work is not available to him. 20. The decrement in income does not appear to be the consequence of the relatively minor loss resulting from injury as far as the left leg is concerned. He does not appear to be any less able to compete in a reasonably accessible labour market by reason of the injury of 25 August 1998. In other words, I think the deficits shown vis-a-vis the West Bus and the State Transit Authority earnings are the consequence of factors other than injury and/or any restriction or incapacity resulting therefrom. I therefore do not think the applicant suffers any loss as a consequence of the relevant employment injury of 25 August 1998. 21. The applicant is entitled to a small sum in respect of the residual 5 per cent permanent loss of efficient use of the left leg at or above the knee. Nothing in the evidence suggests that the ongoing treatment that the applicant may or may not require results from that relatively minor trauma. He was paid his entitlements during the initial period of incapacity and presumably of treatment. Therefore I do not think it is a matter that warrants a general order under s 60 - though there could be some particular items which may or may not be recoverable by the worker. 22. For those reasons I find: 1. On 3.7.96 the applicant received an injury to his right knee which was neither received while the worker was (a) temporarily absent from the place of employment, (b) during an ordinary recess - nor (c) constituted personal injury. 2. On 25 August 1998 the applicant received injury to his left knee in the course of his employment. 3. As a result thereof the applicant suffers a 10 per cent permanent loss of efficient use of the left leg at or above the knee. 4. The deductable proportion in terms of s 68A is 50 per cent. 5. The economic decrement experienced by the worker on and after 5 January 1999 is not the consequence of the employment injury of 25 August 1998. 23. I hereby order and award that the respondent pay to the applicant: 1. A lump sum payment of $3,750 in respect of the residual 5 per cent permanent loss of efficient use of the left leg at or above the knee, an 2. Costs.