Cartner v Barclay [2002] NSWCC 9

Compensation Court of New South Wales

CITATION : Cartner v Barclay [2002] NSWCC 9 PARTIES : Brian Carl Cartner Michael Barclay MATTER NUMBER(S) : 41304 of 2000 JUDGMENT OF: Walker J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: S 36, s 42(1)(d) Workers Compensation Act 1987 Current Weekly Wage Rate. Concurrent Earnings of self employed workers Pratt v Claydon (1996) 14 NSWCCR 86; Watkins v The Scots College (1970) WCR NSW 214; Fowler v Bartlett (1965) WCR 309; CASES CITED: Lloyd v Midland Railway Co (1914) 2 KB 53; SS Raphael v Brandy (1911) AC 413; Palese v Ciba Geigy Australia Ltd (1973) 1 NSWLR; Hill v Bryant (1974) 2 NSWLR 424 DATES OF HEARING: 12/02/02 DATE OF JUDGMENT: 03/26/2002

FOR APPLICANT: J Martin instructed by Heazlewoods Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: P Perry instructed by Vandervords Solicitors

JUDGMENT: THE CLAIM 1. Brian Carl Cartner claims weekly benefits and lump sum compensation in respect of injury to his back and both legs. 2. The basis of his claim is that arising out of and in the course of his employment by the respondent as a harvester driver the nature and conditions of that work injured his back and consequently both his legs. THE ISSUES 3. Mr Perry for the respondent puts in issue: · worker · injury and causation · the quantum of the s 66 claims · the application of s 68A · probable earnings and ability to earn MATTERS FOR DETERMINATION 1. Was the applicant either an employee or deemed employee of the respondent? 2. If so was he injured arising out of and in the course of his employment? 3. If so, did he suffer: (a) a permanent impairment of his back? (b) a permanent loss of the efficient use of both legs above the knee? 4. If so what is his entitlement pursuant to s 66? 5. Does s 68A apply to reduce his s 66 entitlements? 6. If the threshold has been crossed what is his entitlement for pain and suffering pursuant to s 67? 7. Was the applicant totally or partially incapacitated for work as a result of his work related disabilities. If so for what period(s)? 8. In respect of any periods of partial incapacity for work: (a) What was the weekly amount that he would probably have been earning in the same or some comparable employment? (b) What was the average weekly amount that the worker was earning or would be able to earn in suitable employment? (c) What is the difference between (a) and (b)? (d) Should the Court exercise its discretion and reduce that difference to some other amount more appropriate in the circumstances of the case? THE EVIDENCE THE APPLICANTS EVIDENCE 4. Brian Carl Cartner gave evidence that he is 65 years of age and married with a dependent wife. He commenced his evidence by outlining his work experience. He told the Court that on leaving school aged 15 years he obtained qualifications as a carpenter and for the greater part of his working life has worked in the building industry. He has taken periods off from time to time to work as a driver, to manage a mixed business, to graze sheep and to work as a miner at Cobar. 5. In 1990 he established his own business at Trangie as a carpenter and set up a family partnership with his wife to split that income. 6. The applicant said he became friendly with the respondent who is a harvesting contractor when he was carrying out carpentry work on Mr Barclay's home late in 1995. On 1 November 1995 he had a conversation with the respondent in the kitchen of the respondents home. The respondent told him that his header driver had let him down and asked whether the applicant could do the driving for him during the wheat harvest which was about to start. 7. Mr Cartner said he told the respondent that he had never driven a wheat harvester before. His only experience with harvesting equipment was that he had once driven a cotton picker a short distance. 8. The respondent said he would teach him how to operate the harvester and he agreed to work as the respondents harvester driver during the wheat harvest at Trangie for $12 per hour and out of pocket expenses. 9. He started work on 6 November 1995 and worked almost every day including weekends to 7 December 1995. The hours of work were 7am to 7pm but he frequently worked late sometimes to midnight. This was because there was an urgency to get in the wheat harvest before it rained. 10. Mr Cartner said that Mr Barclay directed him as to the sites at which and the hours during which he worked. He was required to work extended hours and on weekends. The wheat harvester was owned and provided by Mr Barclay who trained him in its operation and also trained and assisted him in its maintenance. Mr Barclay was the boss and told him what to do. Mr Barclay provided him with fuel for the header and any expenses associated with its operation such as petrol meals and telephone calls. 11. Mr Cartner said he put his building business on hold during the time he drove the harvester leaving building contracts requiring performance. 12. The applicant told the Court that during his 25 years work as a builder he had occasional aches and pains in his back, arms and legs at the end of a days work. However they all quickly resolved and he was able to get on with his work without further pain. 13. Mr Cartner then described his work with the wheat harvester. He said that the wheat crop he was harvesting had been planted on ground previously used to grow cotton. The fields were crossed by a network of water channels and gutters that had to be negotiated by the harvester as it took in the wheat. The ride was very rough and bouncy. Mr Cartner said he had a great deal of difficulty with the harvesters seat which was not good. His major complaint was that his feet dangled above the cabin floor of the harvester and his buttocks took the full force of the constant jolting. 14. Mr Cartner then told the Court that after a month of enduring this rough ride on about 5 December 1995 he noticed that his back was very sore at the end of the days work. His back was so painful that he was having great difficulty sleeping. The problem was so bad by 7 December 1995 that he found it necessary to consult Dr John at Trangie. Dr John put him off work to 12 December 1995 and prescribed the strong narcotic pain killer Endone. He tried to work on 12 December 1995 but the pain forced him to see Dr John again. He had low back pain extending into his right buttock and thigh and pins and needles extending to the right foot. He was put off work for a further month. During this period his back trouble continued. Dr John moved his practice and the applicant transferred to Dr Wright at Narromine. 15. Between February and September 1996 despite his injury and an operation the applicant returned to his carpentry business to complete work he had contracted to perform prior to his injury. He supervised a few small jobs with the assistance of a friend Paul Berry. Mr Cartner said he took pain killers to enable him to complete the work relying upon Mr Berry and the trades subcontractors to do the heavy labour. 16. The back and right leg pain continued and in November 1996 Dr Wright referred him to see Dr Sheehy a neurosurgeon at St Vincent's Hospital Sydney. After undergoing a lumbar myelogram and further CT Scans Dr Sheehy operated on 28 November 1996 decompressing the right S1 nerve root. The applicant said he was in hospital for 11 days before being returned home by Air Ambulance because he was not able to use public transport. The operation was not a success in that his back and right leg pain persisted. 17. Mr Cartner said that he was again admitted to St Vincent's Hospital on 23 June 1997 for a further decompression of his S1 nerve. There was a significant improvement in his back and leg pain for a period of time after this operation but then the pain again returned. This time he also experienced left leg pain which he estimated commenced about 6 months after the second operation. 18. Mr Cartner's current complaint was that almost any use of his back or legs brings on strong pain. He has not worked since April 1996. He said his current back and leg pain increases during the day as normal activities aggravate the pain. In the morning he can do things like walk around his garden and water the plants. However by the afternoon notwithstanding the heavy painkillers he is taking he finds he has to lie down on the couch for the rest of the day. 19. He described the back pain as constant, gradually becoming more severe. The leg pain is worse on the right. It is associated with numbness and pins and needles extending to the toes. The left leg pain is not as bad but similar in its application. Mr Cartner said he now takes Endone to get to sleep at night. During the day he takes about 10 Panadeine Forte tablets and also some Panadol. He has problems with simple things like putting on his socks and shoes. He uses a string to pull up the socks. 20. Mr Cartner said that prior to his injuries he had enjoyed ballroom dancing, fishing and golf. He has had to give all these recreational pursuits away. Mr Cartner said he was an MGB car enthusiast belonging to the MGB Car club. He has not been able to drive his MGB over the past 3 years. Mr Cartner also told the Court that his disabilities had seriously affected his personal relations with his wife. CROSS EXAMINATION 21. Mr Perry showed the applicant Exhibit 1 which is an invoice under the business name BC & VA Carter dated 12 December 1995 with the further date 1.1.96 written above. The applicant said the invoice was in his wife's handwriting and that she had prepared it from notes on the hours worked he had provided. He thought he had handed the invoice to the respondent after 12 December 1995 possibly on 1 January 1996. The applicant denied he had previously sent an invoice for driving the cotton harvester. He said he had not harvested cotton and was not paid for driving the picker to a sale for a friend. 22. The applicant agreed that he was not paid on a weekly basis. He said he used his building business invoice as a matter of convenience. 23. Mr Perry then asked the applicant whether he had told Dr Sheehy that his back pain started with driving the header. He said he did. 24. Mr Perry then put to the applicant that he had a long history of back pain but had waited until he had an employer to make the allegation so that he could claim workers compensation. He denied the allegation. 25. Mr Perry then put to the applicant that he had told Dr Sheehy that he had been experiencing low back symptoms on and off for many years. He agreed. He also agreed he told Dr Sheehy he had been working hard for many years. He said at times he had pain doing things like pouring concrete and when he went home his back would be sore. When he awoke the next morning the pain was not there. He said he had similar aches and pains in his arms, hands and legs that would also go away by the next morning. 26. Mr Perry then asked the applicant about the work he had performed between March and April 1996. Mr Cartner said that he did not perform heavy work but did supervision and light work. 27. Mr Perry then returned to the history taken by Dr Sheehy and put to the applicant for the second time that he had not told the doctor about the work on the header. He disagreed saying he told Dr Sheehy he was driving the header for a friend when he felt sharp pain in his back and right buttock. He said he recalled Dr Sheehy asking him what a header was. 28. Mr Perry put to the applicant that he had told the respondent prior to starting work that he had a bad back. He denied the allegation. 29. Mr Perry then asked the applicant whether he had played golf after his operations. He said he had tried to play golf on two Saturdays at the Trangie Club. He found the experience painful and unsatisfactory. 30. Mr Perry put to the applicant that in April 1999 he and a Lois Bartlett had won the 4 ball best ball competition at the Trangie Club. He agreed. Mr Perry asked him to explain how if he was no good at golf at all he could have won the competition. He explained that Lois Bartlett played the best balls and won the competition on her own. 31. Mr Perry put to the applicant that when examined by Dr Matheson on 15 December 2000 he indicated to him that he could not lift his leg beyond 30 degrees. Mr Cartner agreed but said that was without pain. He denied he was exaggerating his problem. 32. I propose to deal with the question of the applicants credit after I have analysed the medical evidence. WORKER The Law 33. I recently reviewed the law on worker in Savage v Programmed Maintenance Service Pty Limited (2002) 22 NSWCCR 184 paragraphs [4] to [18]). While the law is well established the review became necessary because of new learning emanating from the High Court in Hollis v Vabu Pty Limited (2001) HCA 9 August 2001. 34. At para [18] of my review I drew the following conclusions as to the current state of the authorities on worker: 1. It is an error of law in determining whether or not an employer/employee relationship exists to deduce from the semantic meaning of labels such as employee or independent contractor the legal rights of the parties. To adopt such legal adjectives is to invert the proper order of the inquiry which is into the contents of those terms - see: Brooks v Burns Phillp Trustee Co Ltd (1969) 121 CLR 432 Windyer J at 458 and Vabu at [36]. 2. Independent contractors carry out their work as principals not as the employers representative. The fundamental difference is between a person who serves his employer in the employers business and a person who carries on trade or business on his or her own. 3. Modern Australian law has shifted the emphasis of the control test from the actual exercise of control to the right to exercise it. Control is no longer regarded as the only relevant factor. Rather the Court must examine the totality of the relationship between the parties. 4. Considerations of the policy issues of rights to economic independence and freedom of contract are not determinative of the legal character of the relationship. 5. Too much should not be made of investment in capital equipment as an indicia except in cases where the investment was most significant and greater skill was required to operate it. 6. Control by the employer over the manner of performance is an important indicia particularly in respect to matters such as hours worked, rosters and denial of the right to refuse work or carry out work for other parties. 7. Requirements as to the wearing of livery, presenting a good corporate image and advertising the employer are also significant indicators to be weighed. 8. Superintendence of finances including restrictions on bargaining the rate of payment, penalties for errors, method of payment and deduction of insurance are also significant indicators. THE SUBMISSIONS 35. Mr Perry valiantly argued his clients case that Mr Cartner was not a worker but he had few feathers with which to fly. 36. Essentially the respondents case was that the applicant and his wife ran a business that was broad enough in its activities to include work such as driving a harvester. The respondents case that the harvesting work was part of the building business essentially rests on the facts that the applicant submitted an invoice to the respondent under the business name and was not paid on a weekly basis. 37. The applicants case as presented by Mr Martin is that for some years the applicant has worked as a builder/carpenter in the Trangie area. The applicant carried out and was paid for carpentry work on the respondents home. The respondent subsequently offered the applicant a job driving a wheat harvester when the normal driver let him down. The applicant was not in the business of harvesting wheat or driving harvesters. Indeed the applicant had never before engaged in such work or anything like it. The applicant put his building business on hold to work for the respondent. The respondent ran the harvesting business owned the harvester, trained the applicant to drive and maintain it, controlled the place and hours of work and required the applicant to work for him exclusively during the harvest season. RESOLVING THE WORKER ISSUE Overview of the Business Relationship 38. As I understand the Vabu decision this Tribunal of fact is required to take a broad overview of both the nature and operation of the putative employers business and the totality of the relationship between the parties within that business operation. 39. The undisputed fact is that it was the respondent, not the applicant, who was in the business of harvesting wheat. Indeed the applicant had never engaged in the occupation or driven a wheat harvester. The only previous activity the applicant had performed that vaguely related to driving farm machinery was an unremunerated short drive in cotton picker. His only connection with farm work was two years as a grazier at Cobar twenty years previously. The applicants Trangie business related solely to the building industry. He had wide experience in that industry and was prepared to take on any type of building work. However he had no qualifications and absolutely no experience in the specialised work of harvesting and had never owned, driven or maintained a harvester. The applicant had to put on hold building jobs he had agreed to perform so that he could drive for the respondent. 40. The contractual relationship between the parties in relation to the driving of the harvester arose because the respondents driver had let him down just as the harvest was about to commence. The getting in of the wheat harvest was a hurried affair given the risk of losing the grain with rain. The respondent in a desperate situation asked his builder to step in and learn to drive and maintain the respondents harvester. The Relevant Indicia A. Control 41. Mr Perry concedes that at all times Mr Barclay exercised control over the hours and place of work. The applicant worked from 7am to 7pm and sometimes to 12 midnight 7 days a week. There was no suggestion that Mr Cartner could perform work for any other party be it building work or driving wheat harvesters. There was no suggestion that he could delegate the driving. B. Skill 42. Mr Cartner had no prior skills in the driving or maintenance of harvesters. All his skills were learned on the job from the respondent. Tools and Capital Equipment 43. The respondent supplied the harvester and all the tools to maintain it. Finances 44. The applicant and the respondent negotiated an hourly rate of $12 plus out of pocket expenses. The applicant was paid at the end of the contract after he submitted an invoice on his building business letterhead. The invoice was prepared by the applicants wife. These facts in isolation might be suggestive of an independent contractor. The applicant was geared up to issue invoices in his building business and it was obviously convenient to issue the invoice in that form. Determination 45. Taking all the evidence into consideration concerning the various indicia to which I have been referred I determine on the balance of probabilities that the contractual relationship between the respondent and the applicant was that of employer/employee and that Mr Cartner was not an independent contractor. THE MEDICAL EVIDENCE THE APPLICANTS MEDICAL CASE Dr Drew Dixon 46. The applicant saw Dr Dixon an orthopaedic surgeon on 20 October 1999 to assess his disabilities. Dr Dixon was of the opinion that the applicant was seriously and permanently disabled as a result of his accident. He diagnosed the condition as residual S1 radiculopathy and said the clinical picture suggested lumbo sacral discal instability. He assessed a permanent back impairment of 25 per cent, a permanent right leg loss of 15 per cent and a permanent left leg loss of 10 per cent. He excluded from these assessment any contribution from a degenerative condition of the lumbar spine. 47. On 7 March 2001 Dr Dixon again assessed the applicant. He diagnosed facet arthralgia secondary to discal instability. 48. Dr Dixon reported for a third time on 30 January 2002. He noted that the MRI of October 1999 showed a multi levelled disco vertebral changes in the lumbar spine with osteoarthritic change at the facet joints together with small right L3/4 and left L2/3 lateral and nerve root canal disc protrusions. He also noted that the applicant had a walking tolerance of 100 yards and found standing and sitting difficult. 49. His final assessment was 25 per cent for the back, 15 per cent for the right leg and 10 per cent for the left leg. Dr Peter Ingle 50. Dr Ingle, a radiologist, reported on the MRI of 19 October 1999. He found multi levelled lumbar disco vertebral degenerative changes and facet joint on changes with bony outlet restrictions and small right L4/4 and left 2/3 lateral and intra-foraminal protrusions. Dr Lesley North 51. Dr North, a radiologist reported on a CT Scan of the lumbar spine on 29 January 2002. 52. Dr North found multi-levelled disc degeneration with loss of height of the disc spaces with diffuse annulus bulge. There was degenerative resorption at L4/5 and L5/S1 with a central vacuum. There was osteoarthritis in the epiphysial joints throughout the lumbar spine. There were also mild disc bulges at L2/3 and L3/4 flattening the thecal sac and or moderate diffuse annulus protrusion at L4/5. Dr John P Sheehy 53. The applicants treating neurosurgeon Dr Sheehy reported on 18 occasions between 15 October 1996 and 24 July 2001. 54. In his first report he noted a history of intermittent low back symptoms for many years but did not mention the header. 55. His report on 18 October 1996 noted that the lumbar myelogram and CT Scan showed compression of the S1 nerve root at L5/S1. His report of 31 October 1996 notes he operated on 28 October 1996 decompressing the S1 nerve root. 56. He noted the nerve was caught at L5/S1 by a focal postero-lateral disruption of that disc. He also noted that the right leg pain had gone after the operation. 57. On 20 November 1996 Dr Sheehy notes the return of right leg pain on 10 November 1996. On 20 March 1997 Dr Sheehy records he continues to complain bitterly of pain persisting in the right buttock posterior thigh with radiation to the back of his calf involving the lateral two toes of the right foot. 58. On 24 March 1997 after attending a further myelogram and CT Scan he diagnosed a mass lesion at L5/S1. He thought that was the result of either a post operative change or recurrent prolapse. 59. On 23 June 1997 Dr Sheehy operated again finding that the S1 neve was tightly caught again by the prolapse. He cleared away the disrupting material from the nerve. 60. On 8 August 1997 Dr Sheehy again notes severe pain in the low back over the past month. In his report of 11 September 1997 he describes the pain as intermittent stabbing pain in the low back on the right side radiating to the ground. He also describes sciatic pain. He noted walking exacerbates the pain. 61. On 11 November 1999 Dr Sheehy notes that the least activity tends to exacerbate his back or right leg pain. Back and right leg symptoms are equally troublesome. The is as well some pain in the left leg. 62. In his report of 24 July 2001 Dr Sheehy addresses the s 68A issue in the following terms: I can find no reference in my reports or in other reports of any leg pain having present prior to the exacerbation of his back pain and development of leg pain for which he consulted Dr John. There were degenerative changes present on the spinal imaging obtained in 1995, however there was a major exacerbation of the back symptoms and development of leg pain described following an injury with a harvester in December 1995 and in such circumstances it would be reasonable to attribute 80 per cent of his residual sequelae to the effects of such injury and 20 per cent to the degenerative change. Professor J G McLeod 63. The applicant saw Professor McLeod a neurologist for assessment on 14 December 2000. Professor McLeod's opinion was that the major cause of Mr Cartner's incapacity is chronic disease of the lumbar spine aggravated by his work from 6 November 1995 to 7 December 1995. He found the applicant unfit to return to work as a builder other than in supervisory capacity. He did not believe the protrusion at L3/4 and L2/3 were work related. 64. He assessed the back impairment 20 per cent, the right leg loss at 10 per cent but found no left loss. 65. He apportioned 5 per cent of the back impairment to the pre-existing condition. THE RESPONDENTS MEDICAL CASE Dr Peter Wilson 66. Dr Wilson, a radiologist, reported on Xrays and a CT Scan if the lumbar spine on 13 December 1995. His conclusion was that there was evidence of disc degeneration t L4/5 and L5/S1 with mild posterior bulging of all four discs. Dr J M Matheson 67. The applicant was examined by Dr Matheson a consultant neurosurgeon on 15 December 2000 on behalf of the respondent. 68. His opinion is that Mr Cartner has a longstanding constitutional discal degeneration in his back. He did not believe the jarring from the header could have injured the back. If there was an aggravation caused by the work it has long since ceased. He found the applicant to be exaggerating his disability and its symptoms. 69. He assessed the back impairment at 25 per cent and found no permanent leg losses. On 14 January 2002 he amended his assessment to include a 5 per cent permanent right leg loss. ANALYSIS OF THE MEDICAL EVIDENCE 70. The issues requiring my determination with the assistance of the medical evidence are as follows: · The applicants Credit · Injury and Causation · Permanency of the left leg loss · S 66 assessment · Application of s 67 (if relevant) · Capacity to earn