Compensation Court of New South Wales CITATION : Edwards v Dumbain P/L [2002] NSWCC 18 PARTIES : Erin Edwards Dumbain Pty Ltd t/as Royal Hotel Motel Scone MATTER NUMBER(S) : 59244 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 13/11/01, 15/11/01, 25/3/02 DATE OF JUDGMENT: 03/25/2002 FOR APPLICANT: Mr M Best instructed by Hallett & Associates. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S Hickey instructed by Lyons Barnett Kennedy. JUDGMENT: 1. This is an application by Erin Majella Edwards against her employer Dumbain Pty Ltd trading as the Royal Hotel Motel Scone in which she claims injury arising out of and in the course of her employment with the respondent on 7 October 2000 when she fell on a step injuring her back. In consequence she claims weekly payments of compensation under the Workers Compensation Act 1987 ("the Act") from the date of the injury to the present time and continuing under s 36 and s 38. In the manner in which the matter was fought it was I think, clear to both parties that payments under s 40 were claimed in the alternative. A s 66 lump sum in respect of 15 per cent permanent impairment of the back was also claimed. No claim is made under s 67 of the Act, no doubt because the s 66 lump sum claimed did not activate the relevant threshold. S 60 expenses for medical and hospital treatment were also claimed, as was interest. 2. I thank counsel for their comprehensive addresses, which here enabled me to deliver an ex tempore judgment today in Newcastle in a difficult and complicated case. 3. The issues were indicated at the commencement of proceedings by Mr Hickey for the respondent in a manner for which I am grateful as being injury, incapacity, permanent impairment and the application of s 9A of the Act. In the course of the hearing however in contentious circumstances the applicant was permitted to mount a claim in the alternative that the alleged injury occurred in the course of a journey within the meaning of s 10 of the Act of a periodic nature between her place of employment and her place of abode. I take Mr Hickey's client also to deny that the injury occurred in the course of a periodic journey within s 10 of the Act in terms of the amendment allowed in the circumstances just discussed. 4. The applicant gave evidence and it is my unhappy duty to record that her credit was to some extent damaged. I shall deal with that when necessary. It is fair to say however that her credit was not impeached by the respondent either in cross-examination or in addresses on the principal issue in the case, which was whether or not she suffered injury arising out of or in the course of her employment with the respondent or according to the course of her daily or periodic journey within s 10 of the Act, and if so whether s 9A of the Act nevertheless defeats her claim. I accept her evidence on those matters. 5. The circumstances in which the applicant's injury occurred can be described within a very short compass. On the date of injury, 7 October 2000, which was a Saturday, she worked a full shift. As had been her custom on previous occasions, she being nevertheless a very light drinker, she remained behind at the hotel conducted by the respondent when her shift finished and after she signed off. She then consumed what was described in the course of her evidence as a "staff drink". It was her evidence that while she received no verbal inducement or encouragement from her employer or from anybody who was employed by it to stay for a staff drink after hours, nevertheless she stayed and did so on Saturday nights with other employees. 6. Robin Isabelle Edmonds, the applicant's immediate supervisor in the employ of the respondent, indeed gave evidence and she said on this subject, amongst other things, that a Mr Daly, the publican, was present on many occasions when staff drinks were ingested over the period of her employment. Mr Daly was not called. Of course it is trite law to say that the principles in Jones v Dunkel (1959), 11 CLR 298 cannot be employed to fill a deficiency in proof of a party's case, such as to establish a prima facie case as to the existence of certain facts necessary for that party's case, when evidence in proof of them is otherwise deficient or lacking. Nevertheless once a prima facie case is established, Jones v Dunkel, and for that matter Insurance Commissioner v Joyce (1948) 77 CLR 39, and most recently in the Court of Appeal Ho v Powell (2001) 51 NSWLR 572 are authorities for the proposition that where a party fails to call a witness whose evidence would be relevant to a particular issue when this witness is reasonably available to that party, it may be inferred that this witness's evidence would not have positively assisted the party who failed to call him or her. I put that matter aside for the moment. 7. The applicant's evidence as to what occurred on the night in question was that it was slightly different to the pattern she usually followed on Saturday nights. What usually occurred on Saturday nights was that her husband would arrive at the hotel, she living at Murrurundi and the respondent's premises being in Scone, and she would then enjoy a staff drink and perhaps a drink or two with her husband and they would then go home to Murrurundi together. On the Saturday night in question when the injury occurred the applicant's husband was working, so that it was her intention to drive home herself. What occurred was that she imbibed a staff drink as she usually did, which consisted of a half-bourbon and Coca-Cola. About five minutes then elapsed. 8. The applicant had ordered or had had ordered for her by somebody else (the evidence is not clear on that point) a Coca-Cola. At the time what I am about to describe occurred, that drink was sitting on the bar and the applicant had not picked it up, nor had she yet paid for it. She received a mobile telephone call, which it would appear she anticipated would be from a person who may have been coming to have a drink with her. It seems to me that the purpose of the mobile telephone call is nothing in point, except to observe that it was a private rather than a work-related call from the point of view of the business of the respondent. 9. Shortly before the applicant received the mobile telephone call, a number of cricketers had entered the bar and were making a noise, as cricketers often do, in the course of consuming their post-game drinks. In view of that, the applicant anticipated that she would be unable to hear her mobile telephone when it rang, so she stepped outside to answer it. She had not attained the footpath on the respondent's premises and was still on the steps thereof when she slipped and fell on her buttocks, suffering the subject injuries. The question raised by that brief recital of facts obviously is whether the injury occurred in the course of or arising out of the applicant's employment with the respondent or both, and whether if so her claim is nevertheless defeated by s 9A of the Act, and I shall examine those questions in turn. 10. There is authority suggesting that if an employee remains on an employer's premises after the cessation of working hours, the premises may not nevertheless lose their character as the premises of the worker for the purpose of ascertaining whether injury occurring thereafter is on a periodic journey from the worker's place of employment to his or her place of abode for the purposes of the Act or its predecessors. Millers Hotels Pty Ltd v Tunks (1973) WCR 154 (CA) was a case where a casual hotel barmaid ceased her duties at the hotel where she was employed at 2.30 pm and thereafter, for approximately three and a half hours, partook of food and alcohol and engaged in conversation with fellow workers at the hotel. She left the hotel thereafter, and while driving her vehicle home sustained injuries in a motor vehicle accident. She succeeded in her application in this Court's predecessor, the Workers Compensation Commission and on appeal the Court of Appeal held that there was evidence upon which the learned judge in the Workers Compensation Commission could find that she suffered on a periodic journey between her place of employment and her place of abode within the meaning of the journey provisions of the Workers Compensation Act 1972, the present Act's predecessor. This case of course does not concern a periodic journey, but for the purposes of that decision it was of course necessary for the Court of Appeal to consider whether there was evidence upon which the learned judge in the Workers Compensation Commission could have concluded that the employer's premises retained their character as such for the period of the worker's ingestion of food and alcohol for three and a half hours after she ceased her duties, and the Court of Appeal concluded that there was sufficient evidence for the learned judge to find that the employer's premises did not lose that character, notwithstanding the worker's ingestion of food and alcohol for the period of time mentioned. 11. It was remarked by Reynolds JA at 155 that: No doubt there can be cases, as was conceded by counsel for the respondent, where, having regard to the lapse of time and the conduct and activities of the worker after the cessation of duties and before the commencement of an alleged journey, it would not be open to a tribunal of fact to hold that the journey was one's which s.7 applied. This, however, is not such a case, and it lies in an area where it was a matter of degree, and therefore of fact, for the judge. 12. The limits of this principle are illustrated by Gibbons v Merimbula RSL Club Ltd (1995) 12 NSWCCR 308; 22 MVR 58, a case where, if I may use the expression, the worker had had "many middies" at his employer's premises, a licensed club, after he ceased employment there, and he then thought it better to go home. Not surprisingly, he was then involved in a motor vehicle accident on the way home and was unfortunately severely injured, becoming a quadriplegic it would appear. Notwithstanding that, the trial judge and after him the Court of Appeal concluded that having regard to the length of time for which the worker had remained in the employer's premises and the degree of his ingestion of alcohol, the premises lost their character as a place of employment for the purposes of the determining whether the worker was on a daily or periodic journey between his place of employment and his place of abode within s 10 of the Act. 13. An illustration of a situation in which a cognate problem occurred is Alcatel Australia Limited v Griffiths (1997) 15 NSWCCR 390 where a Melbourne Cup luncheon was put on by an employer, not at its own premises but at a restaurant, and a worker, having over-indulged in alcohol for a period long after the function actually ceased but still at the restaurant in question, suffered injury by assault on his way home from the restaurant to his home. The trial judge found that the restaurant had ceased to be a place of employment by the time the worker left it, though it was such earlier during the luncheon, and had become a place of entertainment. Nevertheless the trial judge held that the worker was on a daily or periodic journey between his place of employment and his place of abode when injured, and the Court of Appeal reversed the trial judge's finding on the basis that she had failed, once having determined that the premises whence the worker departed to go home were a place of entertainment, to decide within s 10 whether the worker's staying at those premises was an interruption of his journey home which increased the risk of injury. That was another instance, along with Gibbons, of the limits of the proposition enunciated by Reynolds JA in Millers Hotels. 14. Added to those authorities is Muscat v Woolworths Limited, a decision of Neilson J of this court reported at (2000) 20 NSWCCR 283 where, after commendable and exhaustive research, his Honour was able to find that an employee, who was required to report for work as a checkout operator at 6 am, went to the employer's staff room at 5.55 am to make a hot drink for herself and a colleague and accidentally splashed boiling water on her thigh in the course of doing so, suffered injury both arising out of and in the course of employment, and that the worker's claim was not defeated by s 9A of the Act. Before coming to s 9A of the Act, it is appropriate to observe that his Honour adopted with evident approval a passage from Mills' Workers Compensation (New South Wales) 1st ed., 1969 at 285-6 of the judgment and a further passage at 286 and a still further passage at 287. I shall not quote those passages, but it is sufficient to say that they advance the view on authorities they cite, and which I shall not also quote for reasons of space, that a reasonable and permitted user of the employer's premises outside working hours resulting in injury may result in such injury being found both to arise out of and to be in the course of the employment of the worker who suffers it. 15. Indeed as early as Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 it was observed by Dixon J (as he then was) that activities incidental to the employment of the worker undertaken in the course of the use of amenities provided by the employer for the worker at its premises may result in injury sustained during such activities being found to be injury arising out of the employment. 16. There are limits to this principle also, and they are illustrated by a decision of Burke J in Warrell v Longley (2000) 20 NSWCCR 400 where a worker engaged in social activity involving use of a speedboat on a dam organised by his employer on a property owned by the employer. His Honour there found that because of the fact that the activity was purely social and not one which the employee was encouraged or induced to attend by the employer, as distinct from merely being invited to do so, injury which occurred in the course of the activity in question was not injury arising out of the employment, nor one to which the employment was a substantial and contributing factor within s 9A, notwithstanding that it occurred at the employer's premises. This was, as I have said, because his Honour concluded that in the way the phrase was discussed in Alcatel Australia, the premises where the injury happened were at the time it occurred a place of entertainment rather than employment. 17. The authorities could be multiplied. The principles are I think expressed in those I have already cited. The proposition which Mr Hickey contends is firstly that during what I may "staff drinks", the premises of the respondent hotel had already lost their character as a place of employment on the night in question. Secondly he contends that if he is wrong about this, they had certainly lost such a character at the point when the applicant finished her "staff drink", a bourbon and Coca-Cola, and had ordered and received, although she had not picked up or paid for, another drink, a Coca-Cola, before receiving the mobile telephone call in question and suffering injury. 18. As to the first proposition, that the premises had lost their character as a place of employment when staff drinks commenced and after the worker "signed off", I am of the view that this was more the situation spoken of in Millers Hotels than that spoken of in Gibbons in particular, although it is a question of fact and degree and one which cannot be determined purely and simply on the authorities. The publican, Mr Daly, was not called. The applicant proved through her own evidence and incidentally through the evidence of Ms Edmonds that staff drinks were invariably enjoyed on Saturday nights at the respondent's premises in the form of one drink for each staff member, if they desired it, paid for by the respondent. There is no evidence from the applicant that the respondent through its representatives ever expressed any view as to whether this was advantageous to it, but it may reasonably be inferred firstly that conviviality and friendliness between the employees made for a happier workplace and benefited the respondent's business ,and secondly that this would have been advanced by ingestion of a staff drink after work, such as occurred on the night in question. 19. The applicant did not specifically say that the publican had been present on any occasion when she had staff drinks, but Ms Edmonds said that, and the procedure followed when Mrs Edmonds enjoyed staff drinks with the publican being present seems to have been more or less identical to that employed when the applicant enjoyed her staff drink on the night in question, that is to say, that one drink on Saturday nights was allowed after working hours had ceased, with the respondent paying for the drink. It seems to me that the evidence establishes that the respondent encouraged, authorised and permitted the applicant's presence at staff drinks by paying for one drink and that this was probably of some benefit to the respondent in the way I described. Even if it was not, within Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, it seems clear from the judgment of Mason CJ, Deane, Dawson and McHugh JJ that encouragement, authorisation or permission offered by an employer to an employee to engage in a particular activity outside working hours may in some circumstances bring that activity within the course of the employment of a worker injured in the course of it, especially if, as here, the activity was not simply authorised or permitted but induced and encouraged and in the applicant's case, as I think, induced, she being, as she said and I accept, a very light drinker, 20. The authorities subsequent to Hatzimanolis lay some emphasis on a requirement for inducement or encouragement by an employer of activities outside working hours, as distinct from mere permission, before they may be seen as in the course of or arising out of the employment: see particularly Workcover Authority v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 at 593 per Kirby A-CJ, and Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 at 106 per Sheller JA. Those requirements are I think satisfied here. 21. It seems to me that, the applicant having established a prima facie case to that effect, it is for the respondent to displace it, and that by failing to call Mr Daly, the publican, to deny that the applicant was encouraged, authorised and permitted to attend staff drinks in this way, or at least that this was apparently the respondent's intention, I can more easily infer that the prima facie case of injury in the course of her employment established by the applicant is to be accepted, in the way discussed in Jones v Dunkel, Insurance Commission v Joyce and Ho v Powell in particular. 22. Of course even if I conclude, as I have for reasons already explained, that the course of the applicant's employment extended from after the time that she "signed off" until the injury in question occurred, there is a separate question as to whether the injury arose out of the employment. In Muscat v Woolworths Ltd (2000) NSWCCR 283 Neilson J was able to conclude that the reasonable and permitted use of the employer's premises in that case to make a hot drink in the amenities room before work meant that injury sustained in the course of that activity arose out of the employment as well as being in the course of it, because it was reasonably incidental to what the worker was employed to do. Similarly in Healey v Delta Electricity (2000) 20 NSWCCR 491 Neilson J found that injury occurred arising out of and in the course of the worker's employment where he was required to conduct an audit at Wallerawang Power Station at 7 am on a particular morning and therefore, as his Honour found, was reasonably required or expected to stay at a hotel nearby on the night before the audit in order to be on duty at the appropriate time the following morning, and suffered injury in the course of staying at the hotel when he fell down a staircase. A reasonable and permitted user of premises where the worker was reasonably required and expected or authorised to stay for the purposes of his employment meant that the activities being undertaken were incidental to the employment. I shall not cite the extensive list of authorities his Honour cited in that case and in Muscat's case, but they appear to me to lead to the conclusion for which his Honour deployed them. 23. In this case the applicant seems to me to have been making a reasonable and permitted use of the employer's premises which was induced, authorised, encouraged and permitted by it. A narrow view of that use is that it ceased the moment the applicant put down her "staff drink" and did not immediately leave the respondent's premises. A broader and to my mind the better view is that this use continued when for but a few moments she remained upon the premises, having ordered, but not having picked up or paid for another drink and stepped outside without physically leaving the respondent's premises, she being on a step still on such premises, to take a mobile telephone call, that of course being necessitated by the business being conducted on the respondent's premises at the time, which consisted of serving drinks to a number of cricketers who were making a loud noise so that the mobile telephone could not be heard. Had that not been the case, no doubt the applicant would have received the mobile telephone call in the bar where she was standing at the time, rather than stepping outside to do so onto the steps of the respondent's premises, not, it might be noted, onto the footpath outside. 24. Had the applicant for example taken an ordinary telephone call on a telephone installed elsewhere in the respondent's premises and been injured in the course of going to or returning from the telephone, one would not have thought that a use of the premises permitted and encouraged by the respondent ceased. Had she suffered injury in the course of leaving the premises to go home but before she physically left them after completing her staff drink, her use of the premises, which would in my view have been both reasonable and encouraged by the respondent, would not have ceased. Why as a matter of principle must it therefore have ceased merely because she had purchased but had not started to ingest another drink, non-alcoholic, it may be noted, but not not paid for by the employer? 25. One might well ask, for example, in different circumstances whether, had the applicant been employed at a coffee shop conducted by her employer and had she consumed a cup of coffee in identical circumstances after working hours had finished on a busy day at the employer's premises, and had she then gone to the refrigerator and secured a bottle of lemonade for which she afterwards intended to pay, but had not paid for nor started to ingest, when she received a mobile telephone call and went to a step between the employer's premises and the street to receive it and suffered injury falling off the step, she should be regarded as receiving injury neither arising out of nor in the course of her employment, applying the principles just set out. I think not, and it is important to remember that as the respondent does not suggest here in any way that alcohol contributed to the applicant's injuries in this case. The same principles apply to the present case as those that would have applied in relation to premises where only non-alcoholic beverages were served, except perhaps that the inferred benefit to the employer of conviviality and goodwill between employees may not perhaps have been quite as well served. I therefore conclude that the injury arose out of and was in the course of the applicant's employment with the respondent. 26. The question now is whether s 9A defeats her claim. In Muscat and in Healey Neilson J found that the claim was not thereby defeated. It is important nevertheless to look at the text of s 9A and apply the section in this case. It provides of course in subs (1) that: No compensation is payable in this Act in respect of injury unless the employment concerned was a substantial contributing factor to the injury. 27. Subs (2) sets out examples of matters to be taken into account for the purpose of determining this question, without limiting the kinds of matters that should be taken into account for that purpose. In relation to subpar (a), referring to the time and place of the injury, the considerations point in different directions. The time when the injury occurred was after the applicant signed off and for that matter after she had ceased imbibing her staff drink. On the other hand, it was only about five minutes after she had ceased doing so. As to the place of the injury, it occurred on a step which was still part of the respondent's premises, but the question is whether the premises lost their character by reason of the very short time that elapsed between when staff drinks were concluded and when the applicant ordered another drink. For reasons already set out, I have concluded that they did not lose that character. I do not think on balance that the time and place of the injury indicate that I should conclude that the employment was not a substantial contributing factor to it. 28. The nature of the work performed and the particular tasks of that work, which are mentioned in subpar (b) of the subsection, point if anything to employment being a substantial contributing factor to the injury, for the work performed was that of a bartender and snack bar attendant, work which on the applicant's evidence required her in the course of a busy and long shift to be active and on her feet all day. It is not surprising that the respondent would in those circumstances provide staff drinks for the purposes of relaxation and conviviality among the employees, which incidentally would benefit it to some degree. 29. I have already considered the factor mentioned in subpar (c), the duration of the employment, when considering the fact that the injury occurred after the applicant had signed off and completed imbibing her staff drink. I think the short time which elapsed after the applicant's active duties finished makes it an insignificant factor in applying this section. 30. I do not think subpar (d) of subs (2) has any application in this case, as I do not think there is evidence to suggest that the injury might have happened anyway at about the same time or at about the same stage of the applicant's life had she not been employed or not worked in that employment. It is true that hypothetically she could have gone to another hotel and slipped over on a step while taking a mobile telephone call, but the fact that she as a very light drinker makes that less likely in my view, and the fact that she was at the respondent's hotel where her injury occurred was in my view the result of the employer's encouragement that she be there, and I do not think that the mere fact that within a matter of moments after she finished her staff drink she had ordered but had not started to consume a drink which she paid for herself should alter that conclusion. I may have concluded otherwise had the evidence not indicated that she was a very light drinker, as I have said. 31. Subpar (f) of subs (2), which refers to the applicant's lifestyle and his or her activities outside the workplace, does not seem to me to have any particular relevance, and indeed the respondent, as I understand Mr Hickey's address, does not contend otherwise. 32. The general way I should approach s 9A is I think indicated by the Court of Appeal in Mercer v ANZ Banking Group Limited (2000) 20 NSWCCR 70. There Mason P indicated at 80 that in his view the phrase "substantial contributing factor" carries a less severe test than that of injury arising out of the employment, in terms of causal contribution. If I conclude, as I do, that the applicant's presence on the respondent's premises at the time the injury occurred continued to be the result of the respondent's encouragement, permission and authorisation for her to be there, as I have, or that her presence there was of benefit to it, as I have also, it seems to me that her employment was not just a, but the, contributing factor to the injury in question, unless it is crucial that she stepped from the bar of the respondent's premises to the step outside but still on the premises for the purpose of taking a mobile telephone call. 33. I do not think that fact is crucial for, as I have already said, would the conclusion have been different had the applicant gone to an ordinary telephone elsewhere on the employer's premises and taken a telephone call for private purposes? I do not think that it would have been, and in the age of mobile telephones, which are often difficult to hear, I do not think that a change is wrought in the character of the applicant's injury as being one to which her employment was a substantial contributing factor merely because she stepped from the bar to a step outside the bar but still on the respondent's premises for the purpose of taking a private telephone call. That too seems to me to have been a reasonable and permitted use of the respondent's premises, upon which the applicant was still present, as a result of the inducement, encouragement, authorisation and permission of the respondent for her to be there for purposes which, as I have concluded, benefited it as well as the applicant herself. 34. Also, the fact that the applicant needed to step outside from the bar to take the mobile telephone call was purely and simply the result of the respondent's business being transacted therein in serving alcoholic drinks to a group of cricketers. It was nothing to do with, for example, the applicant's desire to take a telephone call in private by stepping outside to take it. In those circumstances, as I have said, I do not consider the applicant's action in stepping outside changed the character of the injury from one to which her employment was a (indeed the) substantial contributing factor to one to which the employment was not a substantial contributing factor within s 9A. 35. The applicant is therefore entitled to succeed in her contention that she suffered injury arising out of and in the course of the respondent, to which that employment was a substantial contributing factor. 36. The remaining evidence can be dealt with in relatively short compass. As to the consequences of the injury, the report of Dr A Isaacs, orthopaedic surgeon, dated 7 December 2000, which was exhibit B, Dr Isaacs being the applicant's treating specialist, establishes that the applicant was initially thought not to have a fracture in the area of her sacrum or coccyx. However, a different view is taken by Dr Isaacs in his second report of 10 January 2001, part of the exhibit, in which he observes that the result of a recent bone scan indeed showed evidence of a recent fracture involving the coccyx, a view to which Dr Isaacs evidently then subscribed. The bone scan is also mentioned in the second report from Dr Frances Thatcher, the applicant's treating general practitioner whose reports of 29 November and 30 November 2000 are exhibit A. 37. Dr Peter Endrey-Walder, a general surgeon, who examined the applicant medico-legally for her solicitors has recorded in Exhibit C, his report of 23 July 2001, and he agreed that the applicant had suffered a fracture of the kind Dr Isaacs eventually found, and found a 15 per cent permanent impairment of the back. 38. On the other hand Dr John Clery, whose reports are Exhibit 2 in the respondent's case, while agreeing the applicant had suffered such a fracture, thought that the applicant had only a 5 per cent permanent impairment of her back. 39. The applicant's credit has been somewhat damaged for reasons to which I shall come in a moment, but even implementing that, I am of the view that having regard to the objective nature of the pathology as demonstrated by the findings on bone scan in particular, she has a permanent impairment of the back, and the proper level at which to set that, having regard to her evidence as well as the medical evidence, discounting her complaints to a degree because of the damage to her credit, seems to me to be 10 per cent in proportion to a most extreme case. No s 68A deduction is urged by the respondent. There will be an award accordingly under s 66. 40. As to incapacity for work, there is no doubt given the nature of the applicant's objective pathology that she would have been totally incapacitated for a period following the injury. Dr Thatcher's reports do not establish precisely when that ceased but the applicant's evidence, which I have no particular reason to doubt in this regard, because it was not contradicted in cross-examination or in other evidence, was that the first time she was cleared by Dr Thatcher to return to work of any kind was from 7 November 2000. Her evidence establishes that she did not however return to work at that time, although she may have requested light duties. 41. S 38 of the Act is not relied upon in addresses by Mr Best (although it is pleaded) and I do not propose to apply it. However, the applicant in fact returned to work, it would appear, on 29 January 2001 after being certified fit to return to nine hours per week work by Dr Thatcher from 25 January 2001. Thereafter she has been certified fit to return to increasing hours of work by Dr Thatcher until the present time and not only did Dr Thatcher so certify, and not only did the applicant return to the employment of the respondent and perform gradually increasing hours of work until the present time, but she engaged in employment elsewhere. This is the matter to which I referred when I said that the applicant's credit had been damaged, because unfortunately she did not disclose that employment in her evidence in chief and it emerged only in cross examination when in my view it became obvious to her that the respondent had evidence of it to call. Despite Mr Best's capable address on her behalf to the contrary, I think her credit has been damaged by that fact, for she surely realised when giving evidence in chief that her claim after her return to work was in respect of the earnings she had lost as a result of being able to earn less with the respondent post injury than she would have earned had she remained uninjured in his employ within s 40 of the Act. 42. That other employment was with none other than the applicant's daughter at a coffee shop in Scone known as the Crowded House. Various dates have been urged as the date when that employment commenced, but the applicant's daughter Carlie Sherie Majella Watson, gave evidence today that the employment commenced at the Crowded House on or about 18 March 2001. An earlier wage schedule was tendered as Exhibit E, but a later one became Exhibit J which consisted of an arithmetically agreed schedule of the applicant's probable earnings but for injury and her actual earnings from her return to employment with the respondent to date. That post-injury employment dated, according to the wage schedule, from 4 February 2001 with the respondent and from 18 March 2001 with the Crowded House. In view of the daughter's evidence which I have no reason to doubt, I accept that date as correct. 43. The view I have formed is that the applicant should firstly be entitled to an award pursuant to s 36 of the Act for total incapacity at her current weekly wage rate for purposes of the Act which I presume is the same as her probable earnings but for injury, $420.42 per week. If that is not the case, the parties have liberty to approach me by way of notice of motion should they wish me to reconsider my award. That award should be from 8 October 2000 until the date she was certified fit for light duties by Dr Thatcher, 7 November 2000, that period being less than the six months provided for by s 36 of the Act. 44. Thereafter, until the date the work at Crowded House commenced on 18 March 2001 the applicant's award should be for partial incapacity pursuant to s 40. For all of that time the difference between the applicant's actual earnings with the respondent and her probable earnings but for injury of $422.42 per week, as evidenced by Exhibit J, is greater than the maximum statutory rate under s 37 or s 40 of the Act for that period, namely $279.40 per week. Therefore for all of the period between 8 October 2000 and 18 March 2001 the applicant's award under s 40 will be at the rate of $279.40 per week. There is no reason to my mind pursuant to the discretion in s 40 why I should reduce the award below that level, as I think that despite her damaged credit the applicant was maximising her work capacity at that time. She was making an honest attempt to rehabilitate herself back into the workforce. 45. However, after 18 March 2001 I am not on the balance of probabilities satisfied that the applicant suffered an incapacity for work, as distinct from a degree of disability. She has given evidence that she has returned to employment for gradually increasing hours with the respondent, such that her earnings do not now anything like reach her probable earnings but for injury. Her disclosed earnings in Exhibit J (which was tendered after her evidence in chief and cross examination) with Crowded House are, to my mind, the correct figures, because they come from the applicant's daughter's wages book which I am satisfied has been honestly maintained for taxation purposes. Even added to the applicant's actual earnings with the respondent since 18 March 2001, her earnings with Crowded House do not bring her up to the total earnings she would have earned but for injury as evidenced by Exhibit J, namely $420.42 per week. Thus the applicant still suffers on paper a loss of income. 46. The reason I am not satisfied that this loss is the result of incapacity for work is that since her return to work at Crowded House and with the respondent, the applicant having initially disclosed only the post injury work with the respondent, I am not satisfied that the applicant's evidence is to be accepted as to her maximum working capacity because of her initial failure to disclose the work at Crowded House. She has also worked a considerable period of time after 18 March 2001 for her daughter on an unpaid basis. That is commendable of course, and she is doing what every good mother should, but the fact is it is extra work which if performed elsewhere would attract a wage and has a value. The actual value of that work is impossible to determine, but it does demonstrate that the work the applicant has actually done since 18 March 2001 does not represent the entirety of her work capacity. In view of her failure to disclose the work at Crowded House in her evidence in chief I cannot be confident in accepting the applicant's evidence that she could not do her usual work for the respondent and has not been able to do so since 18 March 2001. It is true that there are medical opinions which I shall not canvass in the evidence which establish in general that she has an ongoing disability which could well result in incapacity for work, but it is for her to prove that it does and I do not think that she has done so. There will therefore be no award in the applicant's favour for weekly payments of compensation after 18 March 2001. 47. I propose to make an order for s 60 expenses for medical and hospital treatment in the applicant's favour. This should not be taken as ceasing as at 18 March 2001. The applicant's evidence establishes that she has a genuine ongoing disability in her back (as distinct from incapacity for work) which I am sure will require medical treatment from time to time. Providing that such treatment is reasonable and necessary under s 60 of the Act it ought be covered by the section. 48. I was not addressed by the parties on the question of interest, which I understand to be precluded by statutory amendment, and if the applicant thinks she has any basis for such an award she can always approach me on a notice of motion with notice to the respondent. 49. I make the following findings: 1. Injury to applicant arising out of and in the course of employment of the respondent on 7 October 2000. 2. Applicant's employment with the respondent was a substantial contributing factor to such injury. 3. Resulting from such injury applicant was totally incapacitated for work from 7 October 2000 until 7 November 2000 and partially incapacitated for work from 8 November 2000 until 18 March 2001. 4. Resulting from such injury applicant has 10 per cent or 1:10 permanent impairment of her back in proportion to a most extreme case. 50. I make the following award in the applicant's favour: 1. $420.42 per week from 7 October 2000 until 7 November 2000 under s 36 and $279.40 per week from 8 November 2000 until 18 March 2001 under s 40. 2. Respondent to pay the applicant's s 60 expenses for medical and like treatment. 3. $6,000 under s 66 for permanent impairment of the back. 4. Respondent to pay applicant's costs. 51. I recommend the applicant's costs include special conference fee for counsel at $310 and fee for advice on evidence. Mr M Best instructed by Hallett & Associates appeared for the applicant. Mr Hickey instructed by Lyons Barnett Kennedy 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.