Faichney v Sowter Transport Pty Ltd [2001] NSWCC 142

Compensation Court of New South Wales

CITATION : Faichney v Sowter Transport Pty Ltd [2001] NSWCC 142 PARTIES : Rodney Alexander Faichney Sowter Transport Pty Ltd MATTER NUMBER(S) : 51318 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/02/01, 08/02/01 EX TEMPORE JUDGMENT DATE : 02/08/2001

FOR APPLICANT: Mr T Edwards instructed by Curtis Gant Irving LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Sweeney instructed by Lyons Barnett Kennedy

JUDGMENT: 1. The applicant in this matter claims lump sums in respect of injuries to his neck, back and left shoulder which occurred in a motor vehicle collision on 13 March 1998 arising out of and in the course of his employment with the respondent. Mr Edwards of counsel appeared for the applicant and Mr Sweeney of counsel for the respondent. Counsels' addresses have been recorded. It is therefore unnecessary for me to deal with each submission, merely to ensure that it is noted. Counsel have conducted the case with a relevance to the issues for which I am grateful and which makes possible for me to deal with the matter in brief form. 2. The applicant is a 46 year-old married man who had worked for most of his working life as a truck driver or machinery operator with much long-distance truck work. In 1982 he had suffered an injury to his lower back, subsequent to that he did not work for some 2 years. Thereafter, however, he returned to work including long-distance truck driving despite pain in his lower back and left leg. On 13 March 1998 he had parked his semi-trailer in a lay-by and inspected his load. Immediately after he returned to the cabin the semi-trailer was struck from behind by another semi-trailer which it appears was out of control and travelling at considerable speed. The applicant's vehicle was thrust forward a considerable distance and both of them substantially damaged. The applicant had not put his seat-belt on, having just got back in the truck, and he was thrown about in the cabin. Despite his injuries he was able to get his vehicle back to base. He struggled on for about three weeks or so working. However, he was unable to continue. He has not worked since and appropriate payments have been made of weekly compensation and medical expenses. 3. It is perhaps relevant to note that the applicant suffers and has suffered from a number of other conditions including a heart condition, diabetes and a condition of falling down which developed some considerable time after the accident. The evidence available to the doctors does not appear to be capable of establishing that that condition was related to the accident. There may later be other medical material which will establish a relationship. For the moment, that is an unconnected circumstance. The important feature to note, however, is that despite his other conditions the applicant had been able to continue in the work of a truck driver. 4. The applicant injured his neck in the collision. The doctors refer to it as a whiplash injury. The best diagnosis appears to be severe soft-tissue injury in the presence of asymptomatic but established degenerative changes. The radiographic material does not show any structural damage. The applicant has undergone some 28 diagnostic blocks to the zygo-apophyseal joints by Dr Hollo but it seems that that course of investigation has come to an end. Dr Ghabrial, who examined the applicant for his solicitors, is of the view that there is a 30 per cent permanent impairment of the neck. Dr Posel who had done the same, 20 per cent, although he expressed the view in a somewhat inappropriate way. Dr Lowy, who examined the applicant for the respondent, made an assessment of 20 per cent. 5. Mr Sweeney put to me that I should adopt the view of the majority of the doctors at 20 per cent. I did not understand Mr Edwards to contend to the contrary of that proposition or at least to do so vigorously. In any event, it does seem to me that, the onus lying upon the applicant, the balance of the evidence leads to the conclusion that more probably than not the applicant has suffered a permanent impairment of the back, the correct measurement being 20 per cent of a most extreme case. It was not disputed by Mr Edwards that there should be a deduction under s 68A. DrGhabrial and Dr Posel did not directly deal with that question. Dr Lowy did and it was his view that 25 per cent of the disability was due to pre-existing and constitutional factors. Whilst Dr Ghabrial and Dr Posel did not directly deal with the question of pre-existing conditions I think it may reasonably be inferred from their reports that they did not consider there be significant pre-existing matters which they found it necessary to comment upon in coming to their respective diagnoses. 6. The fact is that I accept the applicant was asymptomatic; that is, that any degenerative changes present did not cause him symptoms. The incident itself was a very dramatic and significant one. Dr Lowy, whilst he speaks of pre-existing and constitutional factors, does not set out any explanation as to how he arrived at an assessment of 25 per cent or a 1/4 being due such changes nor set forth the reasoning process which led to that conclusion. In my view, this is the type of situation to which s 68A(6) was specifically directed. It is difficult to determine the appropriate deductible proportion. There is an absence of medical evidence and, in the case of Dr Lowy, an explanation as to how his conclusion was arrived at. It would be expensive and time-consuming to bring the doctors to Court to allow a proper and appropriate examination of the issue. I do not think, having regard particularly to the asymptomatic condition of the neck before the incident and the nature of the incident, that a conclusion that the figure provided for in the subsection of 1/10 would be adopted would be at odds with the evidence which I accept. Accordingly the deductible proportion I find is 1/10. 7. The next table item is that of the back. It was made clear that the applicant did not rely upon aggravation of the pre-existing condition in the lower spine and that the claim was confined to that which followed from the injury to the thoracic spine. Dr Posel was the only doctor who especially made an assessment of impairment of the back based upon that injury. I accept his view that there is 5 per cent permanent impairment of the back being 5 per cent of a most extreme case resulting from this injury. The x-rays show degenerative changes of a minor nature in the back and no doctor expressing a particular view as to what would be an appropriate deductible proportion. I find that it should be 1/10. 8. The next table item is the left arm at or above the elbow. There was in the medical material some discussion as to whether there might be referred pain from the neck, however, I think it clear that the majority view, perhaps ultimately the view of all the doctors, was that there had in fact been injury to the shoulder joint itself. Dr Olsen, who made an assessment of 20 per cent, in making that assessment referred especially to the left shoulder injury. Dr Ghabrial referred to injury to the left acromioclavicular joints, a severe soft tissue injury to the left subscapularis tendon and post-traumatic left adhesive capsulitis. He made an assessment of loss of efficient use of 30 per cent at or above the elbow. Dr Lowy made an assessment of 20 to 25 per cent and also expressed the view that it arose out of left shoulder pathology. 9. It seems that the most probable cause of the condition and sole cause of it is injury to the left shoulder. Dr Lowy's assessment was 20 to 25 per cent; Dr Posel's, 20 per cent. Dr Posel is a orthopaedic surgeon who specialises in shoulder matters. Dr Ghabrial was 30 per cent. Dr Ghabrial, of those three doctors, had the advantage of seeing an ultra-sound which he considered showed disruption of the acromioclavicular joint with some scar formation in the subscapularis tendon consistent with injuries to the tendon. Interestingly enough, Dr Kemp, who is another orthopaedic surgeon who had examined the applicant, noted that ultra-sound was reported within normal limits although he did say that x-ray examination showed degenerative changes of the acromioclavicular joint. Somewhat confusing, perhaps, is that Dr Mowbray, who referred the applicant to Dr Kemp, commented that an ultra-sound performed locally does suggest some problems with the scapularis and the acromioclavicular joint. The ultra-sounds there referred to are the same. 10. Against that background it seems to me that, whilst Dr Posel does specialise in shoulders, Dr Ghabrial had the advantage of seeing the ultra-sound. An appropriate course would be to take the upper range of Dr Lowy's assessment, which is 25 per cent permanent loss of the efficient use of the left arm above the elbow and that is the assessment I propose to find. There remains a question then as to whether there should be a 68A deduction. Dr Lowy expressed the view that 25 per cent was due to pre-existing and constitutional factors arising out of the nature and conditions of the applicant's personal life plus the nature and conditions of his occupation or life as a manual truck driver. The doctor does not make clear how he arrived at the connection between those things and the 25 per cent deductible proportion. None of the other doctors refer to a deductible proportion. 11. The ultra-sound would appear to show that there was in fact structural damage done to the joint. I accept that it was asymptomatic before this event. The x-ray which showed the degenerative changes was tendered but that was taken a considerable time later and it is just not possible to say whether those changes themselves predated the accident. The onus of establishing that there should be a deductible proportion rests upon the respondent and I am not satisfied that it has been established that there should be such a deduction. 12. The remaining issue is the appropriate award under s 67. The amount provided for a most extreme case is $50,000. The task of the Court is to arrive at a sum duly proportional to that amount. It is necessary in a case such as this to remember that the pain and suffering is limited to that which flows from the losses to which I have earlier referred, not from the accident itself other than through those losses and not from the other conditions from which the applicant suffers. There are a number of interesting questions and issues which could be examined in detail. However, on this matter, counsel were particularly helpful. 13. Mr Edwards put that an appropriate range would be 20 to 30 per cent of a most extreme case, Mr Sweeney indicated that the mid-point of that range would not be a matter he would wish to argue against. I have considered the matter. It seems to me that the mid-point of that range; that is, 25 per cent of a most extreme case, is an appropriate amount to award. Having regard to the nature of counsels' submissions I do not feel it necessary for me to set out in any detail my reasons for, in a sense, agreeing with what they put to me. 14. Accordingly, I find: (a) The applicant suffered injury to his neck and shoulder and thoracic spine on 13 March 1998 arising out of the course of his employment with the respondent. (b) As a result of the said injury the applicant has suffered permanent impairment of the neck, being 20 per cent of a most extreme case with a deductible proportion of 1/10. (c) As a result of the said injury the applicant suffered permanent impairment of the back being 5 per cent of a most extreme case with a deductible proportion of 1/10. (d) As a result of the said injury the applicant suffered 25 per cent permanent loss of the efficient use of the left arm at or above the elbow. 15. I make an award for the applicant as follows: (a) Under s 66 in the sum of $7,200 in respect of permanent impairment of the neck after allowing for the deductible proportion, (b) The sum of $2,700 in respect of permanent impairment of the back after allowing for the deductible proportion; (c) The sum of $18,750 in respect of 25 per cent permanent loss of the efficient use of the left arm at or above the elbow; (d) Under s 67 in the sum of $12,500. (e) The respondent is to pay the applicant's costs. (f) Fee for counsel to take judgment. Mr T Edwards instructed by Curtis Gant Irving appeared for the applicant Mr P Sweeney instructed by Lyons Barnett Kennedy appeared for the respondent