Bostock v Fairfield City Council [2001] NSWCC 28

Compensation Court of New South Wales

CITATION : Bostock v Fairfield City Council [2001] NSWCC 28 PARTIES : Darren Bostock v Fairfield City Council MATTER NUMBER(S) : 45747 of 2000 JUDGMENT OF: Burke J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/3/01 DATE OF JUDGMENT: 04/09/2001

FOR APPLICANT:Mr PM Jeffriess instructed by White Barnes LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr DG Saul instructed by Astridge & Murray

JUDGMENT: 1. The applicant seeks compensation by way of weekly payments in respect of the period from 10 May to 18 July, 2000 together with lump sums pursuant to s66 in respect of 18% permanent impairment of the neck and 10% permanent loss of efficient use of the left arm. He also seeks a lump sum payment under s67 in respect of the pain and suffering resulting from those losses equivalent to 50% of that applicable to a most extreme case. 2. Substantially those entitlements are alleged to arise from injury received in the course of his employment between 1994 and 10 May 2000 in consequence of the type of work that he was performing for the employer. 3. The principal issues to be determined are (a) the nexus between the work performed and the incapacity and losses in respect of which the claim is brought and (b) if there be such a nexus whether that work amounts to a substantial contributing factor to the injury. The fundamental area of dispute is that of causality, ever a vexing question. 4. The applicant operated a waste collection truck of the respondent. It was a dual control vehicle driveable from either side of the cabin. The applicant drove almost universally from the left hand side of the cabin. The vehicle had a grab which picked up the bins of waste. This was controlled by a joy stick. The applicant operated that with his right hand. To ensure accurate operation it was necessary to observe the passage of the grab to the bin. To do so the applicant rotated his neck quite substantially to the left each time a bin was picked up. Since he would deal with 1100 to 1200 bins per shift this particular postural manoeuvre was frequent and recurrent. 5. The applicant deposes to being aware of symptoms in the neck and left shoulder region for some two or three years prior to May 2000. While waxing and waning from time to time overall the degree of discomfort tended to escalate with the passage of time. 6. Commencing from 8 May 2000 the applicant took a week's leave from work. During that leave on 10 May 2000 he attended the State of Origin Rugby League match with his brother-in-law. While he certainly cheered for New South Wales he deposes to suffering no particular discomfort at any time nor of doing anything likely to produce such. The match concluding the pair wandered homeward taking a train to (presumably) Riverstone station and thence proceeding home by cab. While a passenger in the cab he was beset by sudden and severe neck and left shoulder/arm pain. He can identify no triggering incident to this event. It just occurred. 7. On 11 May 2000 he attended his general practitioner of some years, Dr Victorino, was dissatisfied with her advice and attended another general practitioner, Dr. Williams the same day. That set in train investigations of his neck/arm problem, a referral to Dr Seex, a neurosurgeon, a period of treatment and an ultimate partial resolution of the acute episode. He was off work for the period in respect of which the present claim is brought. 8. The investigations included CAT scans and MRI which are fairly universally accepted as disclosing desiccation of all cervical discs, a C5/6 bulge, a C6/7 bulge with a degree of disc extrusion into the left lateral recess as well as some spurring and osteophyte formation at both the C5/6 and C6/7 levels, more so the latter. There is impingement upon the left C7 nerve root. 9. The bulk of the medical evidence appears to accept that the focal protrusion at the C6/7 level probably occurred at the time of the onset of severe symptoms on 10 May 2000 and that such occurred in the diathesis of existing cervical spinal and disc disease. 10. It is in that broadly outlined context that argument arises as to the nexus of employment to injury and of any such injury to the claimed incapacity and losses. 11. The applicant advances an type of egg and chicken argument. You don't get a chicken unless you have an egg first. The employment provided the egg, the fairly advanced cervical disease, which may have hatched in the cab but whose cause was really the underlying condition as affected by the work. 12. The respondent is somewhat sceptical of the applicant's alleged neck symptoms over the few years before the event in the cab since the notes of Dr Victorino who treated him at least from 1996 record no such complaint except on one isolated occasion. Moreover the major problem causing the incapacity occurred on 10 May; the applicant hadn't worked for some five days previously so whatever produced the protrusion at that time wasn't work related. 13. In the background the applicant, as an infant, had suffered glomerulonephritis resulting in an ongoing complication of hypertension for which he had been treated all his life. Dr. Victorino had treated him in respect of this condition. The applicant averred that every time he complained to her of his neck/left arm symptoms, both prior to and on 19 May 2000, she told him they were part of the hypertensive problem. No complaint regarding the neck/shoulder as such is noted in her clinical records other than on a single occasion. Her report (Ex B) does note that he had presented "for the past 1½ years complaining of neck pain, initially thought of as coming from high blood pressure and muscular pain". Dr. Downes, seeing the applicant on behalf of the respondent, given the applicant's account of this explanation regards the suggested diagnosis as quite questionable but accepts that such was the advice given to the applicant and that was the advice that he accepted up until it was repeated on 10 May 2000 when the applicant just couldn't accept it any longer and went off to see Dr Williams that same day. Incidentally, he then gave Dr. Wiliams the account of Dr Victorino's long term explanation of his neck/left arm symptoms. 14. I, as Dr Downes, accept that the applicant did experience a degree of neck/left arm symptoms over some time antecedent to the event of 10 May, did complain of such to Dr Victorino and was given the advice that it arose from his hypertensive problem. 15. When he consulted Dr. Seex on 15 May 2000 the applicant recounted a history of a sudden onset of severe left neck and shoulder pain on 10 May on a background of prior mild neck pain. The doctor noted the MRI as showing a left sided C6/7 prolapse and felt that the background discomfort could suggest a degenerative condition that would have been aggravated by the employment which, overall, had significantly contributed to the applicant's problem. 16. Dr. Marnie has subsequently taken a similar view. He suggests that the applicant suffered a C6/7 disc lesion in the presence of long term degenerative changes, the employment being a substantial contributing factor to the ultimate impairment. 17. Dr. Downes views the symptoms experienced prior to the event of 10 May as probably arising from the degenerative disc which he points out is not an injury but a disease. He equates a resolution of any prior episode of symptoms produced by any particular aggravation of that condition with a resolution of the aggravation itself. 18. Both Dr. Downes and Dr. Marnie, each having an accurate history of the nature of the work performed by the applicant, are of the view that such work with its repetitive rotation of the neck to the left was competent to aggravate the degenerative neck condition and, indeed, probably did. The divergence of their opinions is rather on the matter of whether or not such aggravations were transient or permanent in their effects upon the applicant. Dr. Downes opts for the former view, as does Dr. Edwards; Dr. Marnie for the latter as does Dr. Seex. The latter doctors see those multiple individual aggravations as producing a cumulative effect upon the relevant structures. 19. Dr Hughes and Dr. Joffe who have also seen the applicant on behalf of the respondent do not record specifically the repetitive neck rotation required of the applicant in the performance of his work which other doctors regard as the major aetiologically relevant element. In that circumstance it is not surprising that they see no employment connection in the evolution of the cervical condition. That defect in history renders their opinions much less helpful than those of the doctors who did evaluate the effects of that particular factor. 20. Accepting that the protrusion occurred in the cab on 10 May 2000 concurrently with the onset of severe symptoms and that, as far as the applicant was concerned, there was no apparent precipitant of that occurrence it seems clear that the C6/7 disc, immediately prior to that incident, was in a rather parlous condition. The protrusion was either spontaneous or triggered by some minor postural change. 21. I accept the views of Dr Marnie and Dr. Downes that the applicant, for some years (probably quite a number) antecedent to May 2000 had degenerative disease of the cervical spine and discs. It was in that diathesis that the protrusion occurred on 10 May. That seems to be a terminal event, in a sense, of the progression of that underlying disease process. 22. The issue then becomes what part, if any, did the employment play in the evolution of that underlying disease. 23. I accept the applicant's account of symptoms over the year or two prior to that ultimate event, while waxing and waning from time to time, as overall tending to deteriorate. That could be because of the natural progression of the disease alone or because of that progression as worsened or hastened by the effects of employment. 24. While I accept the comment of Dr. Downes to the effect that necks are meant to be rotated the particular employment did involve a quite unusual degree of that movement, rather more than one would expect in any "normal" usage. The concurrent development of symptoms suggests that there was a worsening of the underlying condition while doing that work. To a layman that would suggest a cause and effect relationship. That lay impression is reinforced by the opinions of Dr Marnie and Dr Seex. 25. In Reed v Commisssioner of Police (26 February 2001, unreported) at [121] to [124] I discussed the comments of Kitto J and Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634 and 639 respectively concerning aggravation, acceleration, exacerbation or deterioration of a disease. They are not all given their true force by asking simply whether the disease has been made worse: (per Kitto J). The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism. upon the patient: (per Windeyer J). Of the word "exacerbation" he echoed the opinion of Windeyer J when he said: As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than the advance of the disease itself to a more serious stage of its development. And Kitto J cited, with obvious approval, the comment of Moffitt P in the Court of Appeal, the court below: The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism. 26. If the disease per se is worsened there may or may not be a relevant injury but if its existing effects on the sufferer are worsened then that suggests injury within s4(b)(ii) WCA. 27. I am satisfied that the applicant probably suffered degenerative disease of the cervical spine and discs prior to commencement of employment with the respondent; the six years of work on the waste truck with its repetitive left rotation of the neck possibly accelerated the progress of that condition but it probably aggravated, exacerbated or deteriorated the condition by making it more symptomatic and more vulnerable to the ultimate stage of the frank protrusion of 10 May 2000. That latter fact could well suggest acceleration; the ultimate stage was reached earlier that would have been the case without the intervention of the effects of that six years of unusual neck activity. 28. By whatever means I am satisfied that the applicant received injury to his neck within the ambit of s4(b)(ii) WCA, probably by way of aggravation, the worsening of the effects of the underlying disease. 29. If that be so then the respondent suggests that the degree of aggravation was slight and would not be found to be a substantial contributing factor to the overall consequences. Perhaps that understates the contribution of the work to the disease condition but it would not have been a major factor. 30. However I do not feel that this submission addresses the question framed by s9A WCA. That provision addresses the question of whether the work was a substantial contributing factor to the injury rather than to the disease as such. The injury is the aggravation of the disease, large or small, by the employment. Ex hypothesi the employment is not only a substantial factor in that aggravation but the only factor. This was a view proposed in Cant v Catholic Schools Office (2000) 20 NSWCCR 88 and developed in a little more detail. 31. Having found that the applicant received a relevant injury the question then arises as to whether or not the incapacity and losses claimed result from such injury. Patently, I would think, it was one of the factors involved in the causality but was it a cause from which those consequences resulted? 32. This question of causality has been addressed in an enormous number of cases including Dunham v Clare [1902] 2 KB 292; Ystradowen Colliery v Griffiths [1909] 2 KB 533; Stapley v Gypsum Mines [1953] AC 663; March v Stramare (1991) 171 CLR 506 and Kooragang Cement v Bates (1994) 10 NSWCCR 796. Many of those dealt with rather long chains of causation. Lord Asquith in Stapley identified as a critical test of a relevant cause: was it "in at the death". Was it a cause still operating to bring about the ultimate event at the time at which it occurred as distinct from an event which preceded in the history leading up to the conclusion but really played no active part in bringing it about. 33. These matters seem to pose a question the answer to which could be illustrated metaphorically, as a first approximation, by rock-hopping across a stream. As long as you can jump from rock to rock without wet feet, no matter how convoluted the course, there is a direct route across but once you have to abandon the rocks and wade there isn't. Or perhaps like a multiple cannon shot in snooker. If the cue ball initiates a series of strikes and deflections, no matter how random, which ultimately result in pocketing the target then the first strike was an operative cause in the end result. Effectively this may be but the "but-for" test. It is necessary but not sufficient that a proposed cause should meet that test. 34. A common sense evaluation of the causal chain is required to determine whether the proposed factor really caused or materially contributed to the ultimate outcome. To a layman the effects of six years of repetitive movements as deposed to by the applicant would be enough to "wear out" anyones's neck. It may have been a normal movement but it was done abnormally often. It seems likely that such would affect the applicant's neck at some stage. A body of medical evidence suggests it to be so. The respondent may well have taken the same view since, on resumption after this period of incapacity, the vehicle operated by the applicant was fitted with a video camera to observe the grab and a cabin monitor on which the applicant could observe the operation without the prior neck rotation. 35. Mr Bostock's cervical disease was aggravated by his work; it was the cervical disease as so aggravated that brought him to the state where, on 10 May 2000, for no apparent reason, the C6/7 disc broke down. In my view the effects of the aggravation were still an operative cause of that event. I therefore feel that it can be said that his incapacity and losses ensuing from that event result from the aggravation. 36. The actual evidence of the degree of the losses is quite limited. Drs. Hughes, Joffe, Edwards and Downes offer no assessments. Clearly Dr. Downes at the time of examination in June 2000 was of the view that there were then losses but anticipated that they would resolve. I do not believe that his anticipated resolution came to fruition. Dr Marnie gives the only unqualified assessments of 20% impairment of the neck and 10% loss of use of the left arm. He gets a bit of moral support from Dr. Seex who, in a report of indefinite date, suggests that the neck impairment could be of the order of 20% but that it would be better to wait a few months before assessing it. 37. The assessments of Dr. Marnie match the impression given by the applicant of the manner in which his activity is affected by these problems and seem compatible with the findings on examination. I therefore accept those assessments as quantifying the losses. 38. Such losses as there are, in the respondent's submission, would be subject to large deductions under s68A. That is understandable with four specialists saying the problem are solely the consequence of the pre-existing condition. However, having accepted that there has in fact been an aggravation the deductible proportion would not be 100%. Dr. Marnie suggests a deductible proportion of 10% while Dr Seex suggests that there should be no deduction at all, apparently on the basis that the underlying condition had only occasioned relatively minor problems over something like two years. 39. Section 68A seeks to apportion the causes of a loss between the effects of injury on the one hand and the effects of a pre-existing condition or abnormality on the other. It poses a question of the relative contributions of each. In Mr. Bostock's case it seems problematical which was the most effective cause. It seems that the injury would not have occurred as it did but for the aggravation but the aggravation would have had no effect at that time but for the underlying condition. On the overall evidence it seems to me to be a line ball and that the underlying condition was equally causative with the effects of the employment and that the deductible proportion is 50%. 40. The sums so generated fail to pass the threshold of s67(2) so as to entitle the applicant to an award in respect of pain and suffering. 41. For those reasons I find: 1 Between 1994 and 5 May 2000 the applicant received injury to his neck and left arm by way of aggravation of cervical spinal and disc disease. 2 As a result thereof the applicant totally incapacitated from 11 May 2000 to 17 July 2000. 3 CWWR unknown 4 As result such injury the applicant suffers 20 % permanent impairment of the neck and 10% permanent loss of efficient use of the left arm. 5 The deductible proportion pursuant to s68A is 50%. 6 At all material times there was one child totally dependent upon the applicant for support. 42. I hereby order and award that the respondent pay to the applicant: 1 A weekly payment pursuant to s36 at the appropriate current weekly wage rate in respect of the period 11 May 2000 to 17 July 2000. 2 A lump sum payment pursuant to s66 of $6,000 in respect of a residual 10% permanent impairment of the back. 3 A lump sum payment pursuant to s66 of $3,750 in respect of a residual 5% permanent loss of efficient use of the left arm at or above the elbow. 4 Medical, hospital and other expenses of treatment in accordance with s60. 5 Costs. 43. In default of agreement between the parties as to the appropriate current weekly wage rate I reserve liberty to apply. PM Jeffriess instructed by White Barnes appeared for the applicant. DG Saul instructed by Astridge & Murray appeared for the respondent.