Ellis v Villawood Nursing Home [2002] NSWCC 5

Compensation Court of New South Wales

CITATION : Ellis v Villawood Nursing Home [2002] NSWCC 5 PARTIES : Kathleen M Ellis Villawood Nursing Home Pty Limited t/as Villawood Nursing Home MATTER NUMBER(S) : 58179 of 2000 JUDGMENT OF: Truss J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29 January 2002 DATE OF JUDGMENT: 01/31/2002

FOR APPLICANT: Mr M Daly instructed by Watson Stafford LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Crystal of Blake Dawson Waldron

JUDGMENT: 1. By notice of motion filed 13 December 2001 the applicant seeks an order for inspection of the respondent's premises pursuant to Pt 20 r 8. The applicant is claiming weekly payments from 2 May 2000 together with s 60 expenses and by letter dated 31 October 2001 duly made claims for lump sum compensation pursuant to s 66 and s 67. She was employed by the respondent as a kitchen hand and in the application for determination it is alleged that on 2 May 2000:- The worker suffered injury to the cervical spine whilst engaged in strenuous manual duties involving lifting large pots, cleaning, scrubbing, general domestic duties including putting objects away and cleaning out cupboards in awkward areas. 2. In subsequent correspondence dated 31 October 2001 the applicant's solicitors gave notice that in addition they would be relying upon the nature and conditions of her employment from commencement in about February 1995 until 2 May 2000. 3. The evidence before me indicates that whilst she was at work on 2 May 2000 the applicant collapsed, was taken by ambulance to Fairfield Hospital and was transferred four days later to Liverpool Hospital where investigations revealed a large posterior disc protrusion at C5-6 causing compression of the cervical spinal cord resulting in quadriparesis. 4. The claim is strongly resisted by the respondent which, in its answer, has denied liability on a number of grounds including:- (a) that the applicant did not receive any injury as alleged. (b) that she did not receive an injury which arose out of or in the course of her employment with the respondent. (c) that her employment was not a substantial contributing factor to any injury sustained by her. 5. It emerged during the hearing of the notice of motion that the principal and threshold issue in the case will be whether there is any nexus between the applicant's injury and the work she performed for the respondent. 6. In paragraph 11 of the affidavit sworn 11 December 2001 by the applicant's solicitor, David John Hooper, he asserts that the applicant requires an inspection of the premises to enable her to provide a complete history of her work duties to her medical experts and thereby assist in the determination of the question of causation. Her counsel, Mr Daly, mindful of the decision of the Court of Appeal in Fletcher International Exports Pty Ltd v Hodges (2000) 20 NSW CCR 705, assured the court that the applicant was not contemplating proceedings for damages and that the purpose of the inspection was not to assist her to elect whether to claim compensation or to commence proceedings for damages. Mr Daly also assured the court that it was proposed that those who would attend any inspection would be the applicant, her legal advisers, and possibly a medical expert but that it was not proposed that any technical expert attend. 7. It has been determined by the authorities that an order for inspection is appropriate if it is necessary for the proper determination of a matter in dispute in the proceedings. On the evidence before me I am satisfied that an inspection is appropriate for the proper determination of a question in the proceedings namely the threshold issue of causation. In opposing the application it was submitted on behalf of the respondent firstly that the applicant's case was straight forward and thus an inspection was unnecessary. I reject that submission. Secondly, it was submitted that as the applicant has already provided to the various doctors whose reports have been served detailed histories as to the nature of her work, a view is unnecessary. However it is open to the respondent to challenge the accuracy of these histories and counsel for the applicant submitted that the accuracy of the applicant's history as to the precise nature of her duties, the weights she was required to lift, the movements she was required to make and the like are critical to the reliability of the medical opinions given in her case. I consider there is much force in this submission. 8. Accordingly, pursuant to Pt 20 r 8 I order that the applicant be permitted to conduct a view of the respondent's premises in the presence of her legal advisers and a medical practitioner. I also order the respondent to pay the applicant's costs of the motion including a fee for counsel. 9. Finally, I list the matter for mention before the list judge on 7 March 2002 to consider readiness with a view to entertaining the applicant's application for a two day special fixture. Mr M Daly instructed by Watson Stafford appeared for the applicant. Mr Crystal of Blake Dawson Waldron appeared for the respondent.