Bartley v Industrial Galvanising Corp Pty Ltd [2001] NSWCC 98

Compensation Court of New South Wales

CITATION : Bartley v Industrial Galvanising Corp Pty Ltd [2001] NSWCC 98 Todd Noel Bartley PARTIES : v Industrial Galvanising Corp Pty Ltd MATTER NUMBER(S) : 37725 of 2000 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/04/2001 EX TEMPORE JUDGMENT DATE : 04/05/2001

FOR APPLICANT: Mr J Ingram instructed by Maurice May & Co appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Beauchamp instructed by Sparke Helmore appeared for the respondent.

JUDGMENT: 1. Mr Todd Noel Bartley of Mount Keira claims weekly payments of compensation from 29 October 1999 to date and continuing for either total incapacity or partial incapacity or partial incapacity to be treated as total. However, as the case has been presented and argued no claim is made for either total incapacity or partial incapacity to be treated as total. 2. The applicant also claims lump sum compensation under s 66 for 15 per cent loss of efficient use of his right arm at or above the elbow, 10 per cent loss of efficient use of his left leg below the knee and 12 per cent loss of efficient use of his right foot. However, counsel for the applicant, Mr Ingram, abandoned the claim in respect of the left leg below the knee during the course of his address. 3. There are really two claims involved in this case. There is no dispute that on 16 September 1996 whilst in the course of his employment the applicant injured his right shoulder. On that day two events occurred to the applicant. He was using wire cutters in his right hand and pressing down very heavily with his right hand to cut wire. He strained his right shoulder whilst doing that and felt discomfort in the region of his acromio clavicular joint. He continued working doing the shift for a time but later in the shift a large tank suspended from an overhead gantry swung around and struck the applicant over the top of the right shoulder. It is not clear whether the applicant lost any time from work at that time; if he did it was only for a few days. 4. However, the evidence does disclose that the applicant was placed on light duties and essentially performed light duties up until 11 April 1997 when he was certified as fit for his normal duties on a trial basis by Dr Steven Ng, a general practitioner. Thereafter the applicant did not lose any time from work because of any problem in his right shoulder, nor has he needed any medical treatment whatever for the condition of his right shoulder. 5. X-ray performed on 24 September 1996, that is within a week of the injury, provided findings which were highly suggestive of a subluxation of the right acromio clavicular joint according to the reporting radiologist, Dr Chan. 6. The applicant was referred by his general practitioner to Dr Mark Haber an orthopaedic surgeon here at Wollongong. Dr Haber appears to have seen the applicant on or about 22 November 1996. Dr Haber thought the applicant had an inflammation of the right acromio clavicular joint. Dr Haber arranged for an ultrasound of the applicant's right shoulder which showed a sub-deltoid bursal fluid collection but showed no evidence of rotator cuff pathology. That investigation appears to have confirmed Dr Haber in his opinion that there was an inflammation of the right acromio clavicular joint. What the bursal fluid is, is not clear. It is possible of course that it was blood. 7. The applicant's light duty work was supervised by a rehabilitation provider. The rehabilitation provider closed its file concerning the applicant on 5 May 1997. It is to be recalled that the applicant was certified as fit for a trial of his normal duties on 11 April 1997. According to the rehabilitation provider the applicant had maintained his attendance on normal duties and, although he suffered intermittent pain, it was relieved when the applicant took a short break. The provider decided to close "the case" because the applicant had encountered no further problems and was attending to all of his normal duties. 8. The remaining medical evidence concerning the condition of the applicant's right shoulder is all medico legal opinion. However, the findings of the doctors are of interest. The applicant has been examined at the request of his own solicitors by Dr Richard Deveridge. 9. Dr Deveridge noted that the right acromio clavicular joint was prominent but there was no overt subluxation. He noted some minor upward displacement of the distal end of the clavicle which he thought was probably related to joint capsule laxity. The applicant had a full range of shoulder movement without impingement, however he did experience some discomfort at the acromio clavicular joint when the arm was abducted above 90 degrees. There was no other relative finding concerning the right upper limb. 10. Dr Som Puri, an orthopaedic surgeon, saw the applicant at the request of his solicitors on 9 August 2000. Dr Puri thought that there was a mild swelling of the acromio clavicular joint, he noticed mild subacromial crepitus and diagnosed a chronic sprain of the acromio clavicular joint producing synovitis of the shoulder which could have been caused by the injury reported to him. 11. Dr Puri diagnosed a 15 per cent loss of efficient use of the applicant's right arm at or above the elbow. The assessment made by Dr Deveridge was of a 7 per cent loss of the same portion of the anatomy. 12. Dr Gregory Carr, a rheumatologist, saw the applicant on 8 September 2000 for the respondent. He had available to him x-rays taken on 22 August 2000 which suggested a minimal calcific density extending across the superior aspect of the right acromio clavicular joint indicative of previous injury. On clinical examination Dr Power noted the applicant had minimal tenderness over the right acromial clavicular joint with a full range of shoulder movement and no pain on active resistant movements. He found no swelling or lumps over the acromio clavicular joint. Dr Carr did not think that there was any loss of efficient use of the applicant's right arm at or above the elbow. 13. On 18 December 2000 Dr William Lyons, an orthopaedic surgeon, saw the applicant for the respondent. Dr Lyons found more prominence of the right acromio clavicular joint than on the left with some thickening around it and noted that that was the site of discomfort and there was vague tenderness to deep pressure. Furthermore he found an audible crepitus in the acromio clavicular joint on abduction. However, there was no wasting of the right shoulder girdle, no tenderness over the rotator cuff, shoulder movements were full and free and painless. 14. Dr Lyons expressed this view: In regard to his dominant right shoulder joint, this man sustained injury in the course of his work on 16 September 1996. There appears to have been a straining effort on that date but I consider the principal injury occurred by direct trauma to the top of his shoulder in the following hours of the same date when a suspended tank struck his right shoulder. I consider that he sustained some direct injury to his acromio clavicular joint possibly with a minor degree of subluxation and the trauma has caused some minor degree of secondary calcification in the joint. He largely settled with a short period off work and some physiotherapy and light duties for several months. His residual symptoms are absolutely minimal and consist of occasional intermittent discomfort in the joint and a feeling of some lack of power. 15. Dr Lyons had diagnosed a 5 per cent loss of efficient use of the applicant's right arm at or above the elbow. 16. The opinion of Dr Lyons brings the case, as far as the applicant's shoulder is concerned, together very well in my view. The suggestion of some minor degree of subluxation at the time of the injury would explain the radiological appearances noted on 24 September 1996. The subluxation may spontaneously have righted itself, but the existence of the small sub deltoid fluid collection would be consistent with some frank trauma. The minor subluxation would also explain some thickening or widening of the joint and would also explain the bony prominence noted by Dr Deveridge. 17. I accept that for the reasons expressed by Dr Lyons, the applicant has a 5 per cent loss of efficient use of his right arm at or above the elbow as a consequence of the injury he sustained on 16 September 1996. Whether it was the first or the second incidents on that day which caused the problem is unnecessary to decide. 18. In accepting the assessment of the loss made by Dr Lyons I bear in mind that the applicant essentially performed all his normal work after 11 April 1997 until he was dismissed from his employment for misconduct on 28 October 1999. 19. In other words he performed his normal work for about 2 and a half years. The applicant says he had some assistance with heavy lifting from his workmates, but that is a fairly normal concomitant of industrial practice throughout New South Wales. Furthermore the applicant has managed to find further employment which again requires stressful use of his right upper limb. Again the applicant gets some assistance with heavy lifting but again that is a concomitant of normal industrial practice. The extent of the disability, in other words, is not particularly great at all and hence I accept the 5 per cent assessment made by Dr Lyons. 20. In 1998 the applicant started developing a problem in his left foot. When I use the expression, "started developing a problem," in the foot I am referring to the fact that the applicant noticed symptoms in his left foot. 21. On 6 August 1998 the applicant saw Dr John Putland, a general practitioner, who referred the applicant on to Dr Sam Sorrenti, an orthopaedic surgeon. In his referral note Dr Putland noted that the applicant had developed symptoms, "over the past few months," which were of severe and disabling pain in the region of the head of the left second metatarsal which Dr Putland thought might be due to Morton's neuroma . Unfortunately no medical evidence has been adduced from Dr Sorrenti, however the applicant's evidence is that the problem in his left foot settled down by October 1998 and the applicant told me that he has no ongoing problem with it. 22. In 1999 the applicant started developing problems in his right foot. It would appear that those symptoms developed in mid September 1999. On 22 September 1999 the applicant saw Dr Jeremy Reader who wrote a note to a physiotherapist on 22 September 1999 in which he stated that the applicant was complaining to him of increasing pain over the second toe of the right foot over the previous week. 23. Dr Reader commented that x-rays revealed no evidence of avascular necrosis of the second metatarsal head, but there was malalignment of the second and fourth toes with hyperextension at the metatarsal phalangeal joints. In another report Dr Reader comments that on physical examination the applicant had not only malalignment of the second and fourth metatarsal phalangeal joints of the right foot, but also of the third toe and on clinical examination he noted clawed toes of the third and fourth phalanges. X-rays showed hyperextension of the second and fourth metatarsal phalangeal joints. 24. Dr Reader noted the applicant was required to wear safety boots which were applying undue pressure across the metatarso-phalangeal joints causing them to become, "disordered in their architecture." As I understand Dr Reader's various reports his argument is that the wearing of the safety boots caused the malalignment of the applicant's metatarso-phalangeal joints. In that regard however Dr Reader, a general practitioner, is in a distinct minority. There is another opinion which suggests that the applicant's wearing of work boots and the type of work he did for the respondent has nothing to do with the current problem in his right foot. 25. The middle ground is that the applicant suffers a constitutional condition which has been aggravated by the applicant's work and working conditions, namely the wearing of the safety boots. 26. The applicant's job did involve him to either stand or walk around all day. A pair of his work boots is in evidence as Exhibit A. The applicant worked for the respondent in the process of galvanising metal. Metal items were dropped into vats of liquid for that process. The liquid would often spill out of the vats and on to the floor and the applicant would walk in and through it. 27. The work boots, Exhibit A, clearly showed that the toes of the work boots have flexed upwards like a pair of Turkish slippers. One can accept that the upward flexion of the work boots would throw stress on the toes and the joints of the toes to the foot, that is the metatarso-phalangeal joints, and one can accept that that strain together with the requirement the applicant stand or walk all day, would cause symptoms in an otherwise constitutionally vulnerable foot. 28. It would appear that when the applicant had the problem in his left foot it was probably due to the same condition as now affects his right foot. In a further report Dr Reader refers to the condition of the applicant's toes of the left foot as being "hammer toes." 29. The applicant was prescribed orthotics for initially his left foot symptoms and subsequently for his right foot symptoms. The applicant was placed on light duties by the respondent and was doing essentially sedentary work at the time his services were terminated on 28 October 1999 for misconduct. The misconduct was doing the traditional Australian activity of the "foreign order." The applicant took the gates of his parents' home to his employer's premises and had them galvanised in the employer's processes without his employer's permission. 30. In the grand scheme of industrial relations in this State that was not a particularly gross area of misconduct, however in light of other circumstances one can accept that the respondent's attitude and action was reasonable. The applicant conceded that previously he had been warned, both orally and in writing, for insubordination, for absenteeism but, more importantly, for assaulting his foreman. 31. No submission has been put that the termination of the applicant's services by the respondent in the circumstances in which it was done on 28 October 1999 was unreasonable such that the respondent should be seen as having failed to provide the applicant with suitable employment. In other words the applicant did not have at the time of his dismissal the requisite mutuality to continue to require his employer to provide him with suitable employment. 32. After his dismissal the applicant was referred by Dr Reader to Dr Martin Sullivan, an orthopaedic surgeon at St Vincents clinic in Sydney. Dr Sullivan diagnosed capsulitis and synovitis of the right second metatarsal phalangeal joint causing pain and discomfort. Dr Mark Sullivan noted that the orthotics had not helped the applicant's pain and he suggested and performed an injection of Marcain and Celestone into the right second metatarsal phalangeal joint. However that does not appear to have eased the applicant's symptoms generally. 33. Dr Deveridge noted on examination the presence of mild pes valgus which he said was synonymous with flat feet. That is incorrect, flat feet is pes planus, the condition of pes valgus refers to the outward deviation of the foot from the normal alignment, vis-a-vis the lower limb. Dr Deveridge noted clawing of the toes with medial deviation at the tips, especially the lateral three digits on the right hand side. He noticed tenderness over the right, second and third metatarsal heads and at the adjacent metatarsal phalangeal joints. Dr Deveridge expressed this opinion: There is evidence of mild osteochondritis in the left and possibly also the right foot (Freiberg's Disease). This is a condition of a constitutional nature that effects the metatarsal heads and usually commences in adolescence. It most commonly effects second and third metatarsal phalangeal joints which is the case with your client. I consider that the underlying condition was materially aggravated and triggered by the nature and conditions of his employment, namely the prolonged standing. On the balance of probabilities, ongoing disability in the right foot is attributable to the nature and conditions of his employment with Industrial Galvanising. 34. Dr Deveridge expressed the view that the applicant had a 13.5 per cent loss of efficient use of the right foot from which he would deduct 1.5 per cent because of the underlying constitutional condition leaving the applicant with a compensable 12 per cent loss of efficient use of the right foot because of what happened to the applicant at Industrial Galvanising. 35. Dr Puri said this of his examination of the applicant's feet: Examination of both feet revealed a tendency to deformity of the toes of both feet. There was excessively long second toe and there was tendency to clawing of the middle three toes in both feet causing prominence of the metatarsal heads on the sole producing a tendency to callossity formation on the ball of the feet. There was mild drooping of the longitudinal arches in both feet but mobility of the foot joints was considered to be satisfactory. X rays of the right foot were available for review which also showed tendency to deformity of the toes. 36. Dr Puri expressed the view that the applicant's tendency to clawing of the toes was, "structural in nature," by which I assume he means a constitutional condition. He went on to say that that condition was liable to be aggravated by prolonged standing and wearing of work boots and that the applicant required orthotics in both shoes to redistribute weight bearing on the foot. He went on to diagnose metatarsalgia which of course is only a reference to pain in the long bones of the foot. 37. Dr Puri thought the applicant had a 10 per cent loss of efficient use of each leg below the knee, in other words although the applicant's left foot was asymptomatic he thought the applicant had the same loss as did the right leg really indicating that the loss was due not to the symptoms but to the underlying constitutional condition. 38. The applicant was seen, both before and after the termination of his services, for the respondent by Dr Michael McMahon. Dr McMahon confirms that the applicant had bilateral pes planus although unfortunately in his first report Dr McMahon moved the word "planus" from the second declension to the third declension. Dr McMahon thought that the applicant did have a pes planus which would certainly predispose the applicant towards the condition of metatarsalgia. He considered that walking and prolonged standing on a cement floor was a substantial contributing factor towards the onset of metatarsalgia. 39. Dr McMahon saw the applicant again on 5 November 1999. On examination he thought that the applicant walked with slightly out turned and pronated feet. That is he is diagnosing both pes planus and pes valgus. At the time Dr McMahon saw the applicant the pain in the applicant's right foot was fairly constant but had decreased in severity to be, "only mild now." 40. Dr McMahon thought the condition of the applicant's right foot had, "almost settled." He thought the respondent had a further liability on the basis of exacerbation of the underlying condition which might settle within a period of one month. 41. The applicant's case is that the condition of his right foot essentially has not settled but he is left with ongoing symptoms affecting his right foot. 42. Dr Carr is the doctor who espouses the view that the applicant's continuing problem in his right foot is purely based on the constitutional condition. Dr Lyons' view is the same but differently argued. Dr Lyons said this: He has developed spontaneously anterior metatarsalgia of both feet, originally on the left, but more persistent on the right. The condition has a congenital origin and has no relation whatsoever to his work with Industrial Galvanisers Corporation Pty Limited which was not particularly heavy on his feet. He exhibits bilateral knock knee deformity associated with patella tilting and laxity, bilateral mild torsional deformities of his tibiae and an associated flat foot gate, dropped transversed arch and secondary clawing of the toes. These deformities, including the clawing of the toes, have been present, according to the patient, all his life. Secondly to the dropped transversed arched and clawed toes, he has developed an anterior metatarsalgia, primarily in the metatarsal phalangeal joint of the second toe. On the left side this has been well controlled by a slip insole with anterior metatarsal pad. When wearing this apparatus he has no symptoms. On the right side the deformity generally is more severe and symptomatic relief by the prosthesis, less complete. I do not consider that the degree of walking that he would do with Industrial Galvanisers Corporation Pty Limited, particularly protected by working boots, would have any permanent effect on the underlying pathology which is of congenital origin and as noted is associated with other deformities in the lower limbs and is inevitably associated in later years with anterior metatarsalgia which he is now developing. He has had appropriate treatment by slip in insoles which he will probably have to wear for the rest of his life. Certainly, in a sedentary type job, he would have less obvious symptoms but the degree of standing that he does has no effect on the underlying pathology. He has some moderate disability in both feet and indeed in both lower limbs for which some correction on the right side has already been carried out by operation at other levels, specifically in his right patella and his right navicular. I do not consider however that the disability in his lower limbs relates in any way to the nature of his employment with Industrial Galvanisers Corporation Pty Limited. 43. There are a number of things to be said about that opinion. The first is that the applicant conceded that he noticed the clawing in his toes all his life. Dr Lyons' history and opinion in that regard is accurate. The second thing to note is that Dr Lyons thought that the wearing of the work boots would protect the applicant's feet whereas a mere cursory look at Exhibit A would suggest to any layman the opposite. Dr Lyons of course did not see Exhibit A and had no history of it but one would think that he probably would agree that, with the congenital problems the applicant has, wearing Exhibit A would probably be injurious rather than protective. 44. The third thing to note about Dr Lyons' opinion is a concession by him that if the applicant did a sedentary type job he would "have less obvious symptoms." That indicates to me the doctor concedes that work requiring prolonged walking or standing would cause increased symptoms. He says it has no affect on the pathology but the law does not require an effect on pathology, the law merely requires the exacerbation of the pre-existing constitutional condition, that is the exacerbation of the disease process. 45. Dr Lyons thought that the applicant had a 10 per cent loss of efficient use of the right foot and a 5 per cent loss of efficient use of the left foot. He thought that both those disabilities were due to the underlying congenital problem. 46. The applicant tells me that he has had persisting symptoms since he first developed them in September 1999. The presence of those symptoms was clearly accepted by Dr Reader and Dr McMahon. If I accept the applicant as a reliable witness on the issue of the continuation of symptoms then I would have to accept that there was a continuing exacerbation of the underlying condition caused by the applicant's work for the respondent. There are some matters in the applicant's evidence which cause me some concern but I am prepared to accept that he does have a continuation of symptoms in his right foot. The symptoms have persisted now for some 20 months. 47. Dr Lyons concedes really that the symptoms were going to come on at some stage, "about this time," and it appears to me that if they were going to come on they are highly unlikely to go away. I therefore accept that there has been some exacerbation of the applicant's right foot condition by the type of work he did for the respondent and, in particular, wearing the boots, Exhibit A. It is likely in my view to be permanent. That is, it is not foreseeable that it will go away. That indicates to me that there must be some allowance under s 66 for some permanent loss of efficient use of the applicant's right foot. 48. A key to that, I think, is given by Dr Lyons' own opinion that the right foot is now more troublesome than the applicant's left foot. Dr Lyons allows 5 per cent for the left foot but gives 10 per cent for the right foot. That to me indicates that the difference is really the persisting symptoms in the applicant's right foot and according to Dr Lyons' reckoning of it, that would indicate a 5 per cent loss of efficient use of the right foot due to the exacerbation by the applicant's work. 49. Furthermore that approach ties in with my approach in other cases of a similar nature. I have often stated that where the diagnosis is the aggravation or the like of an underlying constitutional condition, each factor, that is the constitutional condition and the aggravating injury, is necessary but not sufficient, indicating a 50 per cent deduction under s 68A. 50. The opinion of Dr Deveridge that only a very small part of the loss could be visited to the underlying condition to me defies a fair reading of all the medical evidence. I am prepared and do find that the applicant has a 10 per cent loss of efficient use of his right foot but that there is a deductable portion pursuant to s 68A of 50 per cent, such that the applicant is entitled to an award for 5 per cent loss of efficient use of his right foot. 51. A factor which troubled me in the course of addresses was the fact that the applicant is now doing somewhat similar work for another employer and at the time the claim was duly made the applicant was working for the other employer. That to me seemed to be a problem under s 16, however as Mr Ingram has properly submitted, the applicant's claim is in respect of the exacerbation caused to his condition by the current respondent and there is no evidence, for example, of any deterioration of that condition since the applicant has been working for his current employer. 52. The applicant's remaining claim is for weekly payments for partial incapacity. The first question is whether the applicant has a reduced earning capacity on the open labour market reasonably available to him as a result, firstly, of his shoulder injury. I am not persuaded that the applicant has any partial economic disability as a result of the condition of his right shoulder. As I have said the applicant worked on doing his normal duties for the respondent for two and a half years after his return to normal duties. There has been no need for any treatment and it has not been shown to me adequately in the evidence that the applicant himself is less able to sell his labour because of the minor condition in his right shoulder. 53. The problem with the applicant's foot is less straightforward. The applicant was performing essentially sedentary work for the respondent at the time his services were terminated. Even Dr McMahon thought the applicant still had a problem when he saw the applicant on 5 November 1999 and thought the applicant's problem persisted for a month at least. 54. The applicant was unemployed up until 14 June 2000, that is he was unemployed for approximately seven months after the termination of his services. I believe, before I determine the employer's liability for weekly payments, if any, between 28 October 1999 and 14 June 2000, I should consider because it is of assistance to me, the situation after 14 October 2000. 55. The applicant obtained casual work for an engineering company at Dapto. The applicant does that work which is available to him for that employer. His base rate appears to be $12.85 per hour operating on a 40 hour a week basis. However the applicant also works overtime for his new employer as he did also for the current respondent. 56. It is clear that the applicant's income earning ability is affected by the amount of work available to him rather than any physical restriction. For example during the week ending 18 August 2000 the applicant's gross earnings were $617.43 a week. If he had remained in the respondent's employ he would have earned only $609.15 per week. During the week ending 30 August 2000 the applicant earned $655.35, again much greater than he would have earned had he been working for the respondent. 57. During the week ending 16 November 2000 the applicant earned $603.95 which is $5.20 less than he would have earned if he had been working for the respondent. Again in the week commencing 16 November 2000 the applicant earned $603.95, a loss of some $5.20. The same amount again was earned during the week ending 13 December 2000. 58. The applicant conceded that he thought his base rate of pay with his current employer was much the same as his base rate of pay with the current respondent. He also conceded under questioning from Mr Beauchamp that even with some continuing problems in his right foot, he could probably manage to do work for the respondent, given the work breaks that were available to him with the respondent. Furthermore the applicant conceded in chief that if he could get full time work with his current employer he certainly would be doing it. 59. I am not persuaded on the balance of probabilities that since 14 June 2000 the applicant has any economic disability on the open labour market reasonably available to him because of the condition of his right foot. 60. That brings me back to the period between 28 October 1999 and 14 June 2000. Of course it appears that the applicant's services were terminated on 28 October 1999 so the claim should commence on 29 October 1999 and since the applicant started working for his current employer on 14 October if there be an economic incapacity it must cease on 13 October 2000. 61. One can accept that with the applicant's being on essentially sedentary work and still having symptoms in his right foot at the time his services were terminated, he did have an economic disability on the open labour market reasonably available to him. I am prepared to accept that that economic disability persisted until he found his current work. 62. The real question of course is the extent of it. What work could the applicant have done in his ideal sort of work, where he could sit or stand or at will or move around and did not require any excessive stress thrown on his right lower limb. 63. The work of a console operator immediately springs to mind as one for which he would probably be suited and which is reasonably available in the Wollongong area. The award rate for that job is about $428 per week, average earnings are about $480 per week. Doing the best I can I believe the applicant is entitled to the mathematical difference between $606.30 and $480 during the period between 29 October 1999 and 13 June 2000. If my mathematics be any good that entitles the applicant to an award for $126.30 a week during that period. 64. Perhaps in the special circumstances of Mr Bartley's case the most important award I could announce in his favour is for expenses under s 60. That is because it appears to me likely that the applicant will need continued use of orthotics and it appears to me that as far as the right foot is concerned that it is a compensable ongoing liability of the respondent. 65. I have enquired of counsel whether the parties believe any further reasons for judgment are required and I am told that none is so required. 66. For those reasons I make an award for the applicant for $126.30 per week from 29 October 1999 to 30 June 2000 pursuant to s 40. 67. I make an award for the applicant of $4,000 for 5 per cent loss of efficient use of the applicant's right arm at or above the elbow. 68. I make an award for the applicant for $3,250 for 5 per cent loss of efficient use of the applicant's right foot ( 10 per cent before s 68A). 69. I order the respondent to pay the applicant's expenses under s 60 for the treatment of his right foot condition. 70. I order the applicant to pay the respondent's costs. 71. I certify additional conference $200. 72. I release Exhibit A into the custody of the applicant's counsel on his undertaking to return it to the court in the event of any Appeal. Mr Ingram instructed by Maurice May & Co appeared for the applicant. Mr Beauchamp instructed by Sparke Helmore appeared for the respondent.