Compensation Court of New South Wales CITATION : Jones v Schweppes [2001] NSWCC 65 revised - 5/09/2001 Alan Jones PARTIES : v Schweppes Cottees A Division of Cadbury Schweppes MATTER NUMBER(S) : 32019 of 1999 JUDGMENT OF: Moran J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/02/01, 20/02/01 DATE OF JUDGMENT: 02/20/2001 FOR APPLICANT: Mr R Wilkins instructed by Turner Freeman Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Willis instructed by Connery & Partners JUDGMENT: 1. In this case the applicant, who was employed by the respondent in maintenance work on its production lines, claims to have suffered a number of injuries over the ten years or so that he has been employed by the respondent. In particular, in October 1988, he fell heavily on his buttocks and suffered injury to his low back. That injury was the subject of proceedings before this Court and included in the injuries claimed - resulting in problems with his back - were injuries of 2 March 1990 and August 1992 and also a motor vehicle accident in April 1994. However, it seems clear from reading the medical reports that most of the doctors who gave opinions which were considered in that case were of the opinion that any impairment of his back and the resultant loss of use of his right leg at or above the knee came about as a result of the injury in October 1988. 2. The applicant claims in these proceedings that his back injury has been made worse by a fall he had or an incident which occurred on 6 August 1998 whilst he was working on the Sydney Packing Line. His case is that on that day his job was to maintain that machine and whilst walking backwards looking at the machine he stepped with his left leg off the platform. The platform did not continue as far as his left side was concerned and he said he jarred his body heavily when his left leg went down about 40 cm. He did not fall to the ground. He had hold of part of the machine supports. He said that the jarring was such that he could not continue doing that work and because of the pain in his left hip area he decided to go back to the workshop. 3. He said although the workshop was not very far away - it took him ten minutes to get there - he remained in the workshop until 'knock-off time'. He worked on a lathe near a heater. He said he could not move around properly. He said he told his workmate, Mr Winslaid, that he had suffered an injury resulting in pain in his left hip. Mr Winslaid gave evidence before the Court, corroborating that the applicant had complained to him of pain in his left hip, and he noticed that he had a limp which he did not have before. The applicant stayed at work until 11.15 when he had about half an hour more than normal working hours - although there was some dispute about that. The applicant had been so used to working more than half an hour overtime at the end of a shift, it became common practice for him to finish the shift at 11.15 rather than 10.45. 4. He said that his condition was such the next day that he did not come to work. He said he rang up a Mr Jade Prakish in the storeroom and said he "wouldn't be in today". He did not work Saturday or Sunday - and Monday he had a rostered day off. He returned to work on Tuesday and on the Tuesday he again returned on the afternoon shift, which was the shift he had been on for some time, and personally he wrote the record of the 'notification of injury' in the book, and we have a photocopy of that page, Exhibit F. He records in that document, firstly, a drawing of the walkway alongside the conveyor - where there was an area where the walkway did not continue at the same width. This is what he wrote in the Injury Register: I was walking along raised platform when it ran out unnoticed (did not continue in this area) inspecting parts of Sydney Packer - fell down to the floor. Afterwards developed sciatic problems in leg 5. The applicant was cross-examined as to the experience in the company policy and the necessity to report accidents soon after they happen. There were a number of people that he could have reported the incident to while he was at work on 6 August. He could have telephoned people in management and in particular Sue Toohey. The applicant agreed that all those things were possible. He said that when the accident happened he hoped that the condition had settled down. He said that after spending the time off work until Tuesday he felt that he was able to resume his work. He said that he did continue with his work until 6 November 1998 with the assistance from his workmates on heavier parts. He agreed under cross-examination that there was always assistance prior to the accident as well. The other matter that was put to the applicant is that he did not even see a doctor until 11 days after the accident. 6. I have considered all those matters. I accept that the applicant did suffer the injury on 6 August 1998. I accept that he hoped that the effects of the injury would eventually settle down. I accept his mistake in believing that he had up to seven days to report an accident. As I read the Workers Compensation Act and the present Workplace Injury Management Act - which is in much the same terms - an accident should be reported as soon as is practicable after the event and that an employer should notify the insurer as soon as practicable - but if it is a minor injury then the employer should notify the insurer at least within seven days. Mr Jones, although in pain, obviously considered that it was not a major injury. He did tell his workmate about it. I am satisfied that I should excuse his mistake in his belief that he had six or seven days to report the incident - when, in fact, the law is pretty clear, you should report as soon as possible. 7. He saw his doctor and his report is Exhibit B. Actually it is a report by another doctor from the same medical centre. Reading from Dr Denivan's notes and commencing from 17 August 1998, he told the doctor that he fell at work on 6 August 1998 with approximately one foot backward and landed on his left leg. Since then he has suffered pain in his left leg, hip, knee and ankle. The pain was intermittent - comes and goes and shoots down the middle of the leg, et cetera. He returned to see the doctor on 26 September 1998 still complaining of left sacroiliac joint and left hip pain and he was referred for x-rays and eventually referred to a specialist, Dr Riley. Dr Riley arranged for further tests and saw him on two occasions and then eventually he was given a certificate for suitable duties from 6 November 1998. Up till then, apart from a day or two off - or apart from the rest when that doctor said he should have back on 17 and 18 August 1998, the applicant continued with his usual maintenance work with, as I said, help from his fellow employees. 8. At this stage I should say that the applicant's daughter gave evidence. I accept her evidence that when she saw her father it was more probably than not on the Saturday or Sunday after the event and that he was in bed and that he told her that he has had a fall at work. 9. In getting back to the medical issue, there were MRI scans and x-rays taken. It is clear from those tests that the applicant did have osteoarthritis in both hips at the time of injury on 6 August 1998, but I accept the applicant's evidence that he was able to do his maintenance work for the respondent prior to the injury - which work involved a lot of overtime - a lot of times working in awkward positions, and he did not have trouble with either of his hips all that time - although, he did, of course, have a back injury which resulted in back pain and some referred symptoms to his right leg which injury in 1988 resulted in a consent award that the applicant was suffering from 12.5 per cent impairment of his back and a 7.5 per cent loss of use of his right leg at or above the knee. It is clear however that despite those disabilities those disabilities have not reflected in any loss of earnings on the part of the applicant following his initial period of incapacity back in 1988. 10. The applicant's claim is for weekly payments from 6 November 1998 when he went on suitable duties provided by the respondent to date and continuing. He has endeavoured to obtain different light duties to what has been provided to him. I accept that he has been since the injury in August of 1998 unable to perform the whole of his duties as a maintenance man for the respondent. I accept that he has been since the injury partially incapacitated for his pre-injury employment. I also accept that he has been earning as much as he is able to earn following the injury of 6 August 1998. He has been trained to train other people at maintenance work, but he said that he cannot take that experience with him to another factory because he has not been able to complete a computer course which he says is necessary in carrying out those functions. 11. He has an interest in inventions. He invented a water pump and he has obtained a patent in Australia for his invention. His attempts to complete the necessary formalities to have that patent accepted overseas has not come to fruition because of his lack of earnings - not being able to pay the necessary funds overseas to register his patent. His claim for weekly payments consist almost entirely of loss of over-time because the suitable duties although available to him five days a week during normal business hours are not available - over-time is not available in that type of work. 12. Before I embark on what he has been able to earn any further and what he would probably have earned and his entitlements to weekly payments, I should say that the respondent through its counsel indicated that although not appearing in the answer filed by the respondent he is relying upon the provisions of s 9A of the Act, a section that was dealt with by the Court of Appeal in the case of SupAir Pty Ltd v Sweeney, a decision given on 10 August 2000. The respondent says that the applicant must prove that its employment was a substantial contributing factor to the injury. In particular s 9 A(2)(d) should be considered: d) The probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker's life if he or she had not been a worker had not worked in that employment. 13. As I said earlier, the applicant had no problem carrying out the work he did as a maintenance man with the respondent for quite a number of years. I am not satisfied that this pre-existing arthritis he had in his left hip would have reached the painful symptoms it has now in any event. I am satisfied that the employment was a substantial contributing factor to his injury and that he is not prevented from recovering compensation because of the provisions of s 9A. 14. Perhaps at this stage I should move on to the claim under s 66 of the Act and then come back to the award I should make in respect of the applicant's partial incapacity for work. His case is supported by specialists, Dr Riley and Dr J H Drew. Dr Riley considered in October of 1999 that the applicant was suffering a 20 per cent permanent loss of efficient use of his left leg at or above the knee as a result of injury on 6 August 1998. However, he did not consider that the applicant's back problems were related to that injury. He noted that there was a pre-existing arthritis. Dr J H Drew considered on 17 February 2000 that the applicant had 18 per cent loss of use of his left leg at or above the knee as result of the injury and that as far as his back was concerned it was his opinion that one quarter of the problems he had with his back were due to that injury of 6 August 1998. 15. The respondent's medical witnesses on the other hand did not agree. First of all, Dr Bornstein on 2 November 1998 considered he had a 20 per cent loss of use of his left leg at or above the knee as a result of the injury to his hip - but was all due to his osteoarthritis and not to his injury. Dr Matheson, a neuro-surgeon, considered he had a temporary aggravation. He had a 10 per cent loss of use of his leg as a result of his hip injury - but none of it was due to his work. Dr Hagan, a surgeon, noted he had pre-existing osteoarthritis. He considered he had a 20 per cent loss of use of his left leg at or above the knee - but only one quarter of that was due to the injury. Dr Reid said he had osteoarthritis of the hip and that none of his problems were due to his employment. 16. Finally, the radiologist, Dr Korber, in a report headed "Advanced Medical Imaging", of 6 February 2000 said in relation to the left hip, the early x-rays in 1998 demonstrated evidence of long-standing osteoarthritis of the hip. Now, this has been confirmed by MRI examination et cetera. He thought those changes seen on x-ray would suggest that he had changes in the hip for years prior to the injury. This does not necessarily imply that he had prior symptoms. 17. The case, in my view, clearly brings into play the provisions of s 68A of the Act, which reads as follows: In determining the compensation payable under this division for a loss there is to be a deduction for any proportion of the loss that is due to any previous injury whether or not it is an injury for which compensation has been paid or is payable under this division or that is due to any pre-existing condition or abnormality and the proportion of the loss that is required to be deducted because of sub(1) is the deductable proportion of that loss. The section goes on to say in sub(6): If there is a deductible proportion for a loss but the extent for the deductable proportion or part of it will be difficult or costly to determine because for example the absence of medical evidence it is to be assumed for the purposes of avoiding litigation that the deductable proportion of the loss or a relevant part of it is 10 per cent of that loss unless this assumption is at odds with the available evidence. 18. I am satisfied that the applicant does have a 20 per cent permanent loss of efficient use of his left leg at or above the knee. In the light of all the evidence which I have just referred to I am not satisfied that a deduction of 10 per cent is sufficient for the purposes of s 68A. I find that the deductable proportion pursuant to s 68A should be 25 per cent of that 20 per cent . This means that the applicant is entitled to an award for 15 per cent permanent loss of use of his left leg at or above the knee. I am not satisfied on the whole of the evidence that the applicant is entitled to any additional compensation for further permanent impairment of his back. I am satisfied that the problem which the applicant suffers from his back results from the 1988 injury and I am satisfied that no part of it results from the injury of 6 August 1998. 19. Nevertheless, the finding that I have made in respect of the loss of use of his left leg entitles the applicant to compensation for pain and suffering under s 67 of the Act and I will make an award under that section shortly. 20. Coming back to the weekly payments, as I said earlier, the applicant is partially incapacitated for his pre-injury employment as a result of his injury of 6 August 1998. Because of the provisions of s 40(2) the amount which he would probably have been earning but for the injury since 6 November 1998 amount to $1,119.30. I find that on average his actual earnings from 6 November 1998 to date have been $796 per week. I am satisfied as I said earlier in this judgment that that actual amount is the amount which he has been able to earn in suitable employment since the injury, 21. S 40 provides that I should after making those findings exercise my discretion in the amount that should be awarded of that difference which in this case comes to $323.30 per week. I note the submissions made by counsel for the respondent that he is able to perform most of the pre-injury work that he did before and that I should take that into account. However, I have already dealt with that submission in what I just said a moment ago is the step that should be taken following the decision in Aitken v Goodyear Tyre - namely, that the onus is on the respondent to prove that he is able to earn more than he has been able to. I am not satisfied that the respondent has discharged that onus. However, as most of the difference in the applicant's earnings is loss of overtime, I am satisfied I should as part of my discretion take into account the fact that the applicant does not have to spend those many hours working overtime and he has the benefit of using those hours to his own advantage at home - particularly in his case with the type of work that he puts into inventing things such as water pumps et cetera. 22. In the exercise of my discretion, I find that the maximum sum that I should award under s 40 of the Act for the partial incapacity suffered by the applicant should be $280 per week. In the early part of the claim from 1998 that amount exceeds the maximum rate payable for a worker without dependents so that his entitlement under s 40 is limited to those maximum amounts. 23. For those reasons I make an award in favour of the applicant under s 40 as follows: $267.90 per week from 6 November 1998 to 31 March 1999. $272.60 per week from 1 November 1999 to 30 September 1999. $277.10 per week from 1 October 1999 to 31 March 2000. $280 per week from 1 April 2000 to date and continuing. I also make an award in his favour under s 60 for medical and other expenses. 24. I will now return to the applicant's claim under s 67 of the Act for pain and suffering. 25. The medical evidence is clear. The doctors accept that the applicant does suffer painful symptoms in his left hip. The symptoms have been sufficient for him to seek medical treatment and advice. He accepted the advice from his doctors that he should avoid certain types of work and activities. He presented certificates to his employer who arranged for him to have suitable employment rather than continue on with his previous employment. He has a problem with taking medication so that apart from analgesics he has not embarked on any more active forms of treatment. He has been depressed by the fact that he cannot continue with his previous employment. He has had the need to consult a psychologist to help him deal with his anxiety. He has had the difficulty of getting his invention accepted overseas through the patenting process and there are other factors in his life which have been interfered with because of the effects of this injury. 26. The maximum amount payable for pain and suffering is $50,000 and that is payable in a most extreme case and the amount payable in the other case shall be reasonably proportionate to that amount, having regard to the circumstances of the case. I take into account the fact that the applicant is now aged 56. I consider that the proper amount to award to the applicant for pain and suffering is an amount on the basis that he is suffering 15 per cent in proportion to a most extreme case. 27. For those reasons, I make an award in favour of the applicant under s 66 of the Act: In the sum of $11,250 in respect of 20 per cent permanent loss of efficient use of his left leg at or above the knee, less the deductable proportion pursuant to the provisions of s 68A of 25 per cent which means that the applicant is entitled to 15 per cent, an award in respect of an amount of 15 per cent for loss of use of his left leg at or above the knee. 28. I make an award in his favour under s 67, for pain and suffering in the sum of $7,500. 29. I order the respondent to pay the applicant's costs to include qualifying fees for Dr Drew. 30. I certify a second conference, $250. 31. I award interest on the arrears of weakie payments from 6 November 1998 to date at 6 per cent per annum from a date half way through that period on the whole of the arrears to date. 32. Costs to include the costs of 3 October 2000 and that includes a not reached fee for counsel. MR D S WILKINS of counsel appeared for the applicant MR T J J WILLIS of counsel appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.