Foster v Fonthill Pty Ltd - [1987] TASSC 67

Serial No 64/1987
List “A”

COURT: SUPREME COURT OF TASMANIA

CITATION: Foster v Fonthill Pty Ltd [1987] TASSC 67; A64/1987

PARTIES:  FOSTER, Albert Douglas
  v
  FONTHILL PTY LTD

FILE NO/S:  198/1985
DELIVERED ON:  15 December 1987
JUDGMENT OF:  Cosgrove J

Judgment Number: A64/1987
Number of paragraphs: 18

Serial No 64/1987

List "A"

File No 198/1985

ALBERT DOUGLAS FOSTER v FONTHILL PTY LTD

REASONS FOR JUDGMENT COSGROVE J

15 December 1987

For some time prior to the 11 September 1983, the plaintiff was employed on a property known as Fonthill at Lemont. It is a big property, comprising some 4,000 acres and running 200 head of cattle and up to 8,000 head of sheep. Although Mr Foster described himself as a station hand, it appears that, subject to direction from the officers of the company which owned the property, he ran the station more or less single handedly.

On the 11 September 1983 whilst chasing a ewe in a sheep yard, he suffered an injury to his back. It was slightly painful. As he cooled down the back ache increased, and by the following morning, he was unable to move. He has remained totally incapacitated ever since and will remain so for the rest of his life. He is a big man, and, prior to his accident, was capable of lifting, without any difficulty, a bale of wool weighing about 160 kilograms. He is now quite incapable of lifting a bag of cement and even the lifting of a hay bale is extremely painful and rarely attempted. The injury is probably in the L4 – L5 region and is probably an injury to a disc. Whatever the site of the injury, and whatever the physiological nature of it is, it gives rise to severe back pain, and by compression of nerve roots, sets up an irritation in a nerve which leads from the spinal area to the back of the knee. There is therefore a permanent dislocation or distortion of the nerve serving the upper part of the left leg. The effect on the left leg is that it carries a constant sensation of pain, varying from a dull pain and numbness to a sharp sensation such as might be caused by the insertion of a needle. The pain extends right through the upper leg from the hip to the knee. There is no mechanical hindrance to the operation of the leg, but any exertion of the back causes an increase in pain in the leg, almost to the point of collapse. Use of the leg also exacerbates the pain in it, described by Mr Foster as being like cramp in the back of the leg. Mr Foster has difficulty standing for long periods but he can walk up to a kilometre before the leg pain demands that he stop, and by rubbing his leg he can ease the pain so that he can commence exercising again. Driving a car into Oatlands, a distance of about 10 kilometres brings on pain.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Foster v Fonthill Pty Ltd

Details

AGLC: Foster v Fonthill Pty Ltd [1987] TASSC 67
Case: [1987] TASSC 67
Decision Date: 15 December 1987

CaseChat Overview and Summary

The Supreme Court of Tasmania was presented with a case involving Albert Douglas Foster, who sought compensation for a work-related injury sustained while employed at Fonthill, a large property in Lemont. Foster suffered a significant injury to his back while chasing a ewe on 11 September 1983. This injury resulted in severe and permanent pain, effectively rendering him totally incapacitated for the remainder of his life. Foster's condition included severe back pain and a permanent distortion of a nerve in his left leg, causing persistent pain and limited mobility. The primary legal issues were whether Foster was entitled to a lump sum payment under the Workers Compensation Act and, if so, what amount would be just and proportionate to his injury. The court had to interpret Rule 6 of the Workers Compensation Regulations to determine the appropriate compensation.

Cosgrove J examined the statutory framework and the submissions made by both parties. The plaintiff's counsel argued that although Foster's primary injury did not directly match any compensable injury under Rule 5, the partial loss of use of his left leg, an injury listed in Rule 6, warranted compensation for the entire injury. The defendant's counsel contended that Foster was not entitled to compensation under Rule 6 for the entire injury but only for the leg condition. Cosgrove J found that Rule 6 allowed compensation for a "lesser degree" injury if it was of the type listed in Rule 5, but not for the entire injury. Therefore, Foster was entitled to compensation only for the leg condition, calculated as 70% of the total loss of a leg, resulting in a lump sum of $15,214.50. Additionally, the court determined that Foster was entitled to holiday pay for the period during which compensation would otherwise be payable, amounting to $4,039.93, bringing the total compensation to $19,254.43.

Orders