Gardner and Comcare - [2004] AATA 584

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 584

ADMINISTRATIVE APPEALS TRIBUNAL № A2003/189

№ A2003/269

GENERAL ADMINISTRATIVE DIVISION

Re: ELIZABETH GARDNER

Applicant

And:COMCARE

Respondent

DECISION

Tribunal: Mr W.G. McLean, Member

Date: 8 June 2004

Place: Canberra

Decision:The Tribunal affirms the decisions under review made by the respondent on 4 June 2002 and 30 June 2003.

(sgd) W.M. McLean
Member

COMPENSATION — claims for compensation prior to and after 1 December 1988 – common law claim by applicant for damages in respect of accepted work‑related injuries which was commenced in November 1988, amended in June 1995 and settled in April 1997 – assessment of home help claim – effects of common law settlement upon future claims for compensation – decisions affirmed

Safety, Rehabilitation and Compensation Act1988 ss 7, 29, 48(4), 114

Compensation (Commonwealth Government Employees) Act 1971 s 99

McIntyre v Comcare (1998) 50 ALD 416

REASONS FOR DECISION

8 June 2004 Mr W.G. McLean, Member

The Tribunal considered an application from Ms Elizabeth Gillian Gardner ("the applicant") for the review of a decision (reference number A2003/189, previously W2002/416) made by Comcare ("the respondent") on 4 June 2002. The respondent decided to approve the applicant’s request for home help at three hours per week for the next three months.
The Tribunal also considered an application from the applicant for the review of a decision (reference number A2003/269) made by the respondent on 30 June 2003. The respondent decided on its own motion to cease the applicant’s compensation entitlements on and from 17 April 1997.
The Tribunal received into evidence the documents (the T‑documents) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Also received into evidence are exhibits A1 and A2 tendered by the applicant and exhibits R1 to R5 tendered by the respondent.
The applicant was represented by Mr H. Selby of counsel. The respondent was represented by Mr B. Kelly of counsel. Sworn oral evidence was given by the applicant and her husband Mr T. Gardner. Sworn oral telephone evidence was given by telephone Ms Carolee Peace and Dr Alan Home for the respondent.
The applicant commenced employment with the Australian Protective Service ("the APS") on 16 January 1986 as a Protective Services Officer Grade 1. On 27 July 1986 the applicant completed a Report of Injury claiming that she had suffered from bruised knees on 26 July 1986 when she slipped on the kitchen floor of the Immigration Detention Centre at Maribyrnong. On 26 November 1986, the applicant lodged a claim for compensation in respect of right knee injury attributable to the 26 July 1986 incident. The applicant elected to claim compensation under the Compensation (Commonwealth Government Employees) Act1971 ("the 1971 Act") in respect of the injury to her knees.
On 8 December 1986, Dr K. King, an orthopaedic surgeon, reported to the Department of Local Government and Administrative Services ("DLGAS") that the applicant had informed him that she slipped and fell heavily at work on 26 July 1986 and that she had been suffering from pain in both knees since that date, but particularly the right knee. DLGAS wrote to Commonwealth Employees Compensation on 28 May 1987 advising that liability for compensation was admitted on 15 December 1986, in respect of the right knee injury suffered by the applicant on 26 July 1986.
On 16 June 1987 the applicant completed a statutory declaration in which she declared:
I, Elizabeth Gillian Smith 106 Eleanor St., Footscray 3011 Protective Service Officer Gr. 1. do solemnly and sincerely declare
The circumstances of (R) Knee injury is as follows:
1.        After the fall on the 26^th of July 1986, I suffered swelling and severe bruising for about five weeks. From then, as is noted on X‑Ray referral, I suffered pain on and off, putting it down to the cold weather.
2.        I was on day shift at the Detention Centre on the weekend of the 22nd./23rd. (November) 1986. I walked into the kitchen to get tea bags as I turned around from the cupboard my knee cracked and collapsed from under me. I had to hold onto the bench for support ans [sic] suffered extreme pain for the remainder of the day and that night.
3.        The following Monday I attended Dr S. Gosts surgery where he advised an X‑Ray.
4.        I was then sent to the specialist who advised medication and Physiotherapy which continued for some weeks; to no avail. A further visit to the specialist where it was decided that an Arthroscopy would be carried out to determine the damage. This was done on the 22nd of April 1987.
All other information pertaining to this and the end result is available from Mr. C. Haw.
On 1 November 1987 the applicant lodged a claim for compensation under the 1971 Act for aggravation of the injury to her right knee. She stated that the aggravation first became apparent when she was carrying out a patrol of the 11^th floor of the Defence Centre, tripped over torn carpet and wrenched her right knee. A further claim for compensation was made by the applicant on 25 November 1987 in respect of arthritis caused by her knee injury. The applicant stated that the "disease has become apparent since operation done by Mr Haw 22/5/87. Original injury 26/7/86". On 24 December 1987, Commonwealth Employees' Compensation determined that DLGAS was liable to pay compensation to the applicant under the 1971 Act in respect of her right knee injury.
On 16 September 1988 the applicant completed a report of an injury that occurred on 8 August 1988 in respect of aggravation of her right knee injury and right wrist injury. She said:
…There are two steps up into the control room as I was about to walk up my (R) knee gave out, I tripped up the stairs and in doing so threw out my right hand to prevent myself from falling. I hit the brick wall with my right wrist and then my right hand went flat to the floor.
On 30 November 1988 the applicant lodged a statement of claim for damages in the County Court at Melbourne against the Commonwealth of Australia as follows:
The Plaintiff's claim is:
1.At all material times the Plaintiff was employed by the Defendant as an Officer of the Australian Protective Service of the Department of Local Government and Administrative Services of the Defendant.
2.There were terms of the said contract of employment that the Defendant would take reasonable care for the safety of the Plaintiff and In particular, that it would take reasonable care to provide a safe place of work, safe equipment, a safe system of work, adequate instructions and competent fellow employees.
3.At all material times the Plaintiff was acting within the course and scope of her employment with the Defendant.
4.On or about the 26th of July, 1986 the Plaintiff whilst on duty at the Immigration Detention Centre, Maribyrnong slipped and suffered injuries to her knees.
5.The Plaintiff was so injured by reason of the negligence of the Defendant, its servants or agents.
PARTICULARS OF NEGLIGENCE
(a)Failing to avoid exposing the Plaintiff to unnecessary risk of injury.
(b)Failing to provide a safe system of work.
(c)Failing to take any or any adequate measures to make the building safe in which the Plaintiff could work.
(d)Failing to maintain the premises in a safe and clean condition.
(e)Failing to ensure that the area where the Plaintiff was expected to walk and work was at all times maintain in a dafe [sic] condition.
(f)Failing to provide the Plaintiff and other employees with suitable and safe footwear to avoid or minimise the risk of injury.
(g)Failing to comply with the provisions of the Industrial Safety Health and Welfare Act 1981 and the regulations made thereunder.
6.At all material times the premises was a work place within the meaning of the Industrial Safety Health and Welfare Act 1981 and the Defendant was the occupier thereof.
Further and in the alternative to paragraph 5 the Plaintiff was so injured by reason of a breach by the Defendant of its statutory duty owed to the Plaintiff by the provisions of the Industrial Safety Health and Welfare Act 1981.
PARTICULARS
The Defendant failed:
(a)to ensure as far as reasonably practicable the safety, health and welfare of the Plaintiff in and during her work.
(b)Failing to provide and or maintain equipment that was so far as reasonably practicable safe and without risk to health.
(c)Failing to so far as reasonably practicable maintain the work place in the condition that is safe and without risk to health.
8.As a result of the Defendant's negligent and all breach of statutory duty the Plaintiff suffered injuries.
PARTICULARS OF INJURIES
Injury to both knees.
Pain and restriction of movement.
Anxiety, pain and shock.
PARTICULARS OF SPECIAL DAMAGE
1.The Plaintiff is aged 48 and was born on the 16^th of August, 1940.
2.The Plaintiff has received payments of compensation and payment of all medical and like expenses from the employer but has suffered loss of income and impairment of earning capacity and full particulars of all special damages will be provided prior to the trial of this action.
AND THE PLAINTIFF CLAIMS DAMAGES  $100,000.00
DELIVERED with the Summons.
TAKE NOTICE that the Plaintiff desired the above endorsement to stand as her Statement of Claim but other wise requires pleadings.
DATED this 29^th day of November 1988.
. . . . .[sgd] O'Haire & O'Haire. . . . .
Solicitors for the Plaintiff
Mode of Trial:       Judge Alone
Place of Trial:       Melbourne
On 22 January 1989, the applicant completed a compensation claim in respect of recurring aggravated knee injury, which was lodged with the respondent on 7 March 1989. She declared that whilst walking at the Immigration Detention Centre at Maribyrnong on 13 January 1989 her knee cracked and gave out.
ON 14 November 1989 Mr C. Haw, an orthopaedic surgeon, provided the respondent with a written reassessment of the applicant. He said:
I saw Mrs. Smith for reassessment today and it is quite clear that she still has ongoing problems of great significance in relationship to her right knee with an active synovitis and in addition following her recent fall at home after work, has in addition developed sciatic pain almost certainly referred from the facet joints in the lower lumbar region of her spine. At the present time she has quite marked root irritation.
It is quite clear that it is inappropriate for her to be working in the IDC where she is at risk of falling and reinjuring both her knee and her back. Having said this it is quite clear that she is also capable of working as a clerk and could do a desk job within any other department of the Commonwealth Government. I would like to once again very strongly suggest that this would be a very appropriate way of dealing with Mrs Smith's situation as otherwise it is going to become impossible to avoid her discontinuing work totally.
On 12 January 1990 the applicant completed a claim for compensation in respect of injuries to her back on 11 November 1989 and 14 November 1989. She declared that the cause of the injury on 11 November 1989 was as follows:
After work, knee gave way as I stepped into house; I fell onto step.
Occurred – step leading into kitchen
Cause – unstable (R) knee (previous injury)
Place – 19 Donald Avenue Essendon
On 23 January 1990 the respondent determined that the evidence did not satisfy it that there was a liability to pay compensation in respect of the above injury to the applicant’s back on 11 November 1989. The applicant’s claim was disallowed. On 30 January 1990 the respondent decided to revoke its determination on 23 January 1990 and issued a replacement determination that "liability has been found for injury to lower lumbar region, aggravation of right knee injury". The determination was made by the respondent under the Safety, Rehabilitation and Compensation Act1988 ("the 1988 Act"). The relevant legislation provided under the 1988 Act came into operation on 1 December 1988, which is the effective date of the commencement of the Act and the repeal of the 1971 Act.
On 13 June 1990 the respondent wrote the following letter to the applicant:
Mrs E. Smith
19 Donald Avenue
ESSENDON    3040
COMMONWEALTH EMPLOYEES' REHABILITATION & COMPENSATION ACT 1988
Claim No: V88/17392
Dear Mrs Smith,
I am writing to you concerning your possible entitlement to benefits under Section 29 of the new Act which came into force on 1 December 1988. This section deals with payments for household services and attendant care services.
The new legislation provides for the payment of not less than 50% of the amount per week paid by the employee (ie you) for household services up to a maximum of $215.40. Household services would include such things as cleaning the house, cooking, laundering clothing, shopping and garden maintenance.
In relation to attendant care services, the new Act provides for a payment of 100% of the amount incurred by the employee up to a maximum of $215.40 per week. Attendant care would include such things as assistance with dressing, grooming and personal hygiene routines.
In deciding whether a claim for household services is payable, the legislation now requires that the following issues be considered:
(a) the extent to which household services were provided by the employee before the date of injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of the household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) above, before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury; and
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
In considering the cost of attendant care services, the following points will be taken into account:
(a)       the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b)       the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c)       the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d)       the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e)       any assessment made in relation to the rehabilitation of the employee; and
(f)        the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
If you wish to proceed with an application for these benefits, it will be necessary for you to address all of these points. In addition, you should complete the attached statement in so far as it applies to your situation.
If you have any queries concerning any of these details, please do not hesitate to contact me on the phone number shown at the start of this letter.
The respondent wrote to the applicant on 5 July 1990, indicating that her application for payment of household services under s 29 of the 1988 Act had been approved from 4 July 1990 to 28 July 1990. Since then the applicant has been provided with household services from time to time at varying levels dependent upon the circumstances, in accordance with s 29 of the 1988 Act.
The applicant has requested the Tribunal to review the adequacy of the respondent's decision on 4 June 2002 to approve home help of three hours per week. The respondent's determination of 4 June 2002 was reviewed by the respondent at the request of the applicant on 6 June 2002, and on 15 August 2002 a review officer informed the applicant that the determination had been affirmed.
The respondent wrote to the applicant setting out the status of her various claims for compensation. Although the letter is undated it would appear from the dates referred to by the respondent that the letter was most likely written in 1994. The following is an extract taken from this letter:
Dear Ms Spencer,
RE: Claim Number 75848
Employer: DOLGAS
I apologise for the delay in providing this response to your enquiry. As we discussed, your situation is complex and it required some thorough reviewing of your files, along with some consultation with more experienced staff.
Under the claim number of 75848 you have six parts. These are as follows:
Part NO.                Description  Status
01  Injury to both knees  open
02  Aggravation to right knee  closed
03  Right knee & right wrist  closed
04  Aggravation of knee  withdrawn
05  Lumbar back  closed
06  Left shoulder & left knee  rejected
As you can see, the only claim open at this point in time is your "01" which is for your knees. On several occasions your doctors have linked your knee injuries and your back injury together. As a result of that information, Comcare extended your disability in the "01" to include the lumber [sic] spine. This was done to assist you in the management of your claim. Dr Haw on 13/5/94 clearly links both your knees and your spinal condition. On 21/4/94, Mr Morris also linked the two conditions.
The abovementioned letter from Mr Hayden G. Morris orthopaedic surgeon, dated 21 April 1994 stated as follows:
Attention: 21–4-94
Mr. AD Maher
Comcare Aust
Fax: 654-8438
Dear Sir,
Re: Mrs Elizabeth Spencer (Claim No-00075848/01)
As a result of an injury at work 26-7-86, Mrs. Elizabeth Spencer sustained an injury to both knees, which later were responsible for further falls at work whence she sustained an injury to her lower back. She has now required hospitalisation for pain relief and physiotherapy at the John Fawkner Hospital, Moreland Rd., Coburg.
On 28 June 1995 the applicant lodged an amended statement of claim in the County Court of Victoria proceedings claiming the following particulars of injuries:
PARTICULARS OF INJURIES
Severe injury to weight bearing area of medial femoral condyles of both knees;
Traumatic chondromalacia patellae causing rapid development of arthritis in both knees;
The Plaintiff required bi‑lateral knee replacement athroplasty;
Because of the instability in her knees the Plaintiff has suffered a series of falls, the first of which occurred on or about November 1989 causing injury to her lumbar spine and she has developed arthritis in the lumbar spine with nerve root irritation and bilateral sciatica;
Injury to the right wrist;
Swelling and instability to the left ankle;
Severe nervous reaction causing tremors in the head and arms;
Exacerbation of asthmatic condition;
Anxiety and depression.
9.On or about the 13^th of August 1987 whilst in the course of her employment at the detention centre, the Plaintiff tripped and fell over torn carpet (hereinafter referred to as "the second incident").
10.The second incident was caused by the negligence of the Defendant, its servants and/or agents.
A notice of settlement relating to the above statement of claim in the County Court of Victoria indicates the following:
NOTICE OF SETTLEMENT
(pursuant to SECTION 23 of the HEALTH & OTHER SERVICES
(COMPENSATION) ACT 1995
Take Notice that on 25 March 1997 Elizabeth Spencer (formerly known as Elizabeth Smith) accepted the offer of settlement made by the defendant to compromise County Court Action No.88806685.
1.Information provided pursuant to Section 23(3)
(a)Name, address and date of birth of compensable person
Elizabeth Spencer
51 Princetown Avenue, Craigieburn, 3064
Date of Birth:16 August 1940
(b)Nature of injury
26 July 1986 and 13 August 1987
(c)Nature of injury
severe injury to weight bearing area of medial femoral condyles of both knees;
traumatic chondromalacia patellae causing rapid development of arthritis in both knees;
bi‑lateral knee replacement arthroplasty;
injury to the lumbar spine and arthritis in the lumbar spine with nerve root irritation and bilateral sciatica;
injury to the right wrist;
swelling and instability to the left ankle;
severe nervous reaction causing tremors in the head and arms;
exacerbation of asthmatic condition;
anxiety and depressions.
(d)Names of parties to settlement
Elizabeth Spencer (Plaintiff) and Commonwealth of Australia (Defendant).
(e)Date of payment
To be agreed.
(f)Amount of compensation under settlement
$300,000.00 plus costs

A release relating to the County Court proceedings and dated 4 April 1997 indicates that the applicant received $300,000 in settlement of her claim.

The respondent provided the following written advice prepared by Mr Ian Robertson QC on 24 March 1997 in respect of the abovementioned County Court proceedings (Exhibit R5). Mr Kelly said that Mr Robertson acted for the Commonwealth of Australia in the matter.
A D V I C E
Re Elizabeth Spencer (nee Smith)
v.
The Commonwealth of Australia
1.I thank you for your further instructions in this matter.
2.I note that you require my advice on the issue of causation of the plaintiff's alleged injuries.
3.BY her amended Statement of Claim dated, 15 February 1995, the plaintiff alleged the following additional injury:
"Because of the instability in her knees the Plaintiff has suffered a series of falls, the first of which occurred on or about November 1989 causing injury to her lumbar spine and she has developed arthritis in the lumbar spine with nerve root irritation and bilateral sciatica."
4.AS I understand it, the plaintiff also alleges that she suffered injury to her right wrist and left shoulder by reason of the series of falls.
5.IT is well established law in this State, that the plaintiff is entitled to damages for all the consequences of the original injury which are not too remote.
6.MANY of these consequences can not be known at the time of the happening of the original injury, and indeed many of the consequences may not even be known as at the date of trial and assessment.
7.AT trial, the assessment of damages relating to the future, is often based on nothing more than a prediction supported by appropriate medical evidence.
8.IN the case for advice, we know as a fact that the plaintiff suffered injury to the knees of such severity as to eventually require bilateral knee replacement arthroplasty.
9.I would think that the plaintiff will have no difficulty in obtaining supportive medical evidence to the effect that knee injuries can cause instability, which in turn can cause falls, which in turn can cause further injuries.
10.IN my opinion, in the case for advice, such a link between the original injuries caused by the falls would be foreseeable to the defendant and would not be too remote so as to disentitle the plaintiff to compensation for the further injuries suffered.
11.A good example of the legal principle at work is afford by Brocker v Roscoe Transport Pty Ltd & Ors (1985) Aust Torts Reports 80‑750.
12.THIS was a decision of the New South Wales Court of Appeal, (Kirby P. Hope J.A. and McHugh J.A.).
13.THE appellant has suffered personal injuries, including a knee injury whilst a passenger in a taxi which was involved in a motor accident. Her injuries were aggravated by two further falls.
14.THE first fall occurred in her home when her knee "gave out". This fall caused her very bad back pain.
15.THE second fall occurred in her doctor's surgery when the doctor moved the chair on which the plaintiff intended to sit and she fell to the floor suffering an aggravation to her existing injuries, together with additional injuries.
16.THE Court held that the defendant was liable for the injuries caused by the fall at home from the knee giving out, but was not liable for the injuries she received in the fall at the doctor's surgery.
17.IT was held that it was proper to regard the aggravation of the condition caused by the second fall as resulting solely from an act not forming any part of the treatment of the plaintiff but due to a new cause, namely the withdrawal of the chair.
18.THE law is clearly stated by Kirby P. at page 69,483,
"… where further injury to a plaintiff results from a subsequent mishap without carelessness by himself and where this further injury would not have been sustained had he not been in the physical condition caused by the defendant's neglect, the added damage is directly linked to the original catastrophe [and], by inference since the Wagon Mound (No. 1) may be taken generally to be within the realm of what is reasonably foreseeable."
19.IN my opinion in the case for advice, the plaintiff's added injuries will be found to be directly linked to the original accident of July 1986 and as such were reasonably foreseeable by the defendant.
20.IF my instructing solicitor wishes to discuss any aspect of this advice with me please do not hesitate to contact me.
[signed]
Owen Dixon Chambers
24 March 1997
In the decision of McIntyre v Comcare (1998) 50 ALD 416 made by the Federal Court of Australia, his Honour Madgwick J said:
…Of course, it is a common, indeed everyday occurrence, and well‑sanctioned in law (see Willis v Commonwealth (1946) 73 CLR 105) that a later injury can be treated as the compensable sequel of an earlier one which primarily gives rise to the liability of a defendant to pay compensation.
It is apparent that the applicant/plaintiff and the defendant in the matter before the County Court accepted as a fact that it was because of the instability in the applicant’s knees that she suffered a series of falls, the first of which occurred on or about 1989, causing injury to her lumbar spine and that she had developed arthritis in the lumbar spine with nerve root irritation and bilateral sciatica. This fact is referred to in the abovementioned particulars of injuries which are included by the applicant in her amended statement of claim lodged in the County Court of Victoria on 28 June 1995. Also, Mr Robertson opined that "the plaintiff's added injuries (to her back) will be found to be directly linked to the original accident of 1986 (to her knees) and as such were reasonably foreseeable by the defendant". The Tribunal concludes that the parties in that matter accepted that the work‑related injuries to the applicant’s back on 11 and 14 November 1989 were a sequel of the work‑related injury to the applicant’s knees on 26 July 1986.
In consideration of the abovementioned history associated with the work‑related injuries suffered by the applicant from July 1986 and accepted by the respondent, and also the abovementioned amended particulars of claim lodged by the applicant in the County Court of Victoria, the Tribunal finds that the work‑related injuries to the applicant’s back on 11 and 14 November 1989 were included by the applicant and provided for by the defendant in the common law settlement of $300,000 on 4 April 1997.
The applicant gave sworn oral evidence and tendered the following written list which sets out household jobs that she is capable of completing and jobs which she alleges that she is not capable of completing (Exhibit A1):
Jobs done and not done by Elizabeth:
Done:
Cooking a meal.
Wiping down benches.
Tidy fridge.
Put clothes away.
Light dusting.
Folding some clothes. (Assistance with bigger items)
Put lighter grocery items away.
Assist Tony with shopping.
Wipe down bathroom basin. Wipe down toilet.
Not done:
Vacuuming.
Washing floors.
Hanging out wet washing.
Ironing.
High dusting.
Tidying cupboards.
Cleaning ovens.
Bathroom – shower/tiles/floors cleaning toilet.
Gardening.
Prolonged preparation of food.
Making bed.
The applicant relocated from Victoria to reside in Guilderton in Western Australia on or about September 1997. She subsequently relocated from Western Australia to reside at her present address of 58 Bergalia Street, Moruya, NSW around May 2003. She is married and resided with her husband Mr Anthony James Gardner in both Western Australia and NSW. Mr Gardner receives a social security carer's pension for caring for the applicant. The applicant said that her NSW home was comparatively smaller than her Western Australian home and she was asked by the respondent:
So that even if there's no change in the number and type of jobs that you can or can't do around the home, there's certainly been a change in the amount of those jobs that is required to be undertaken? That's correct?---

And the applicant replied:

Well, the jobs don't change. The size of the house has changed. That's all.

The applicant agreed that while she was living in Western Australia she was provided by the respondent with home help at varying levels ranging from two hours to six hours from time to time, depending upon an assessment by the respondent of her changing needs. The applicant said that Ms Carolee Peace provided the home help in Western Australia for about three years, up to the time that the applicant relocated to NSW. The applicant said that Ms Peace started at three hours per week which was later varied to four hours per week and finally reduced by the respondent back to three hours per week. The applicant contends that the reduction of home help time by the respondent did not permit Ms Peace to provide the home help assistance that she required, and she said:
Well, she wasn't able to hang out washing for me. Sometimes the ironing wasn't completed. High dusting was not done. There was just various little details that were left undone. She didn't – she just didn't get time to do them.
The applicant gave evidence that she was unable to hang the larger items of washing (such as sheets, towels, quilts etc) on her Western Australian clothes line because raising her arms above her head caused her to lose feeling in her legs and she resultantly fell over. She said that such loss of feeling in her legs could happen immediately or it may not happen for a couple of minutes. She said that she was prevented from lowering the clothes lines to below shoulder height because the wet large items of her washing would touch the ground and become dirty. However, she was able to lower the clothes line and peg out smaller washed items without loss of feeling in her legs and her husband was capable of hanging the wet larger items on the clothes line.
The applicant said that she is able to occasionally iron a single item such as a T shirt. She agreed that her husband assists her with clothes ironing from time to time. The applicant said that she is able to prune the roses in the garden and she is able to assist her husband with supermarket shopping. She said that she is unable to carry any heavy shopping bags but she can carry the lighter ones containing items such as tea, coffee and frozen goods.
The applicant said that sitting for prolonged periods to complete tasks such as ironing clothes on an ironing board causes her intense pain and numbness in her legs. On the other hand, she is able to drive her motor car for periods of up to 2 hours, fly in an aeroplane for approximately 3 hours from Perth to Singapore and return. She was also able to exercise continuously for 15 minutes at a set pace on her treadmill exercise machine until it "blew up" in January 2001 due to overwork.
The applicant did not provide any medical or other expert evidence at the hearing to support her contention that on 4 June 2002 she required home help in excess of three hours per week for the next three months as approved by the respondent. Around May 2002, the applicant wrote the following undated letter to a physician, Dr Andrew John Stewart of Gin Gin, WA (Exhibit R1):
Andrew,
This new form is no different from the others can you please fill it in accordingly. Could you also add a note to the bottom or on the back stating that I DO need more time as they still have not reviewed me for more time and I am still only getting three hours per week. I really need 4½ hours as Carolee is finding it a push to get it all done. Also could I have a scrip for Zoloft.
Thankyou Elizabeth.
[signed]
It appears that this undated letter was provided to Dr Stewart with the applicant’s application for household services dated 24 May 2002 (T181 pp313‑314). Dr Stewart signed the application on 27 May 2002 but failed to make any recommendation at that time, as requested by the applicant, for the amount of home help to be increased above three hours. Dr Stewart also failed to recommend any increase in home help in a subsequent application for household services (T191 pp334‑335) which he signed on 5 July 2002.
The applicant’s husband, Mr Anthony Gardner, also gave sworn oral evidence and tendered the following written list of household jobs that he is capable of performing as well as the jobs that he alleges that he is not capable of performing (Exhibit A2):
Jobs done or not done by Tony.
Done:
Meal preparation when required
Shopping
Folding Washing
Hanging out washing when able.
General Tidy as required.
Make bed.
Gardening when able.
Not done
Vacuuming unless absolutely necessary.
Washing floors unless absolutely necessary.
Tidy cupboards
Clean fridge.
Ironing
Mr Gardner spent 20 years in the Royal Australian Navy and has been living with the applicant since 1991. He has known the applicant since 1958. Mr Gardner receives a small pension from the Department of Veterans' Affairs as well as a social security carer's pension of $80 per month for caring for the applicant.
Mr Gardner confirmed that he is able to undertake vacuuming of the carpeted area of their home which takes him about 20 minutes to complete, depending upon his back condition. He is prescribed Panadene Forte to relieve his back pain. He was also able to mop the floors and to peg out wet clothes etc on the clothes line while they resided in Western Australia. He said that he and his wife used a trolley to transport the wet clothes to the clothes line. He also said that he and his wife cleaned the shower recess and cupboards and said:
Now regards the shower, she does half way and I do the bottom half because I've got to sit on the ground and do the bottom half of the shower. And like, when we do the cupboards, she does the top section and I sit on the floor and do the bottom section, except the oven, I can't do that, so my daughter came down – has come down from Batemans Bay and done it.
Mr Gardner was asked by Mr Kelly:
Just in terms of the sort of things that you've told us would be of assistance to have done for you by home help, how long per week do you think on average that it would take in your present house?

And Mr Gardner replied:

Well working on how fast Carolee Peace use to work in Western Australia and the size of the house we've got now, I hope it doesn't offend Liz, but I'd say two hours.

Ms Carolee Patricia Peace gave sworn telephone evidence. Mr Kelly's instructing solicitor, Sparke Helmore, prepared the following outline of the evidence of Ms Peace dated 23 June 2003 (Exhibit R4). Prior to giving evidence Ms Peace read the outline prepared by Sparke Helmore and said that its content was true and correct.
OUTLINE OF EVIDENCE OF CAROLEE PATRICIA PEACE
Date of document:             23 June 2003
Filed on behalf of:              The Respondent
Date of filing:  23 June 2003
Prepared by:
Sparke Helmore  Telephone: (08) 9288 8000
Solicitors  Reference:ijm:COM131/907
12^th Floor, The Quadrant  Email: [email protected]
1 William Street
PERTH WA 6000
Carolee Patricia Peace, Care Aid/Home Help Provider, Silver Chain (Lancelin), will give oral evidence in respect of the following matters, which to the best of her knowledge and understanding are true and correct;
1I have been employed with Silver Chain for approximately eighteen months, prior to which, I was employed with Western Health for four years.
2I first met Ms Gardner at the end of 1999.
3I have known Ms Gardner for approximately three and a half years, being the end of 1999 to the present date.
Home Help
4I was Ms Gardner's home help assistant for approximately three years.
5As best as I can recall, when I first assisted Ms Gardner I was required to provide 4½ hours per week of home help. This was later reduced to 3 hours per week.
6As Ms Gardner's home help assistant, I was required to perform the following:
·   Vacuum ironing room.
·   Clean laundry.
·   Vacuum fourth bedroom including walk in robe.
·   Vacuum third bedroom including walk in robe.
·   Clean toilet and vacuum floor.
·   Clean shower bath vanity in main bedroom.
·   Vacuum hallway including linen press.
·   Vacuum master bedroom including walk in robe.
·   Clean ensuite shower and 2 vanity basins.
·   Clean ensuite toilet and basin.
·   Vacuum computer room.
·   Vacuum hall and entry.
·   Vacuum formal lounge room.
·   Vacuum formal dining area.
·   Vacuum games area.
·   Vacuum kitchen including pantry.
·   Vacuum informal dining area.
·   Vacuum TV room.
·   Wash all floors.
·   Ironing (time permitting)
7It is my opinion that Ms Gardner was able to perform many of the duties I was being requested to perform. Ms Gardner told me that when I am unable to assist her [sic] is able to iron, clean her kitchen, clean her bathrooms and wash her clothes. Ms Gardner also told me that when her house was open for inspection her husband would vacuum the house and she mopped the floors.
Ms Gardner's Capacity
8I am aware that Ms Gardner did have knee replacement surgery, and that she also complained of back pain.
9In the time that I have known Ms Gardner, I have only seen her use a walking stick on two occasions. The first, when I picked her up from St John of God. The second, when she was due to be assessed by an independent medical practitioner.
10Ms Gardner use to complain that she could not climb stairs but I have observed her climbing stairs on many occasions.
11I have observed Ms Gardner on her treadmill for several hours continuously.
12I have observed Ms Gardner using her gopher on only a few occasions (not more than five times).
13I am aware that Ms Gardner has a registered photographic business.
14Apart from me being Ms Gardner's home help assistant, I also knew her through Weight Watchers ("WW"). Ms Gardner would often join WW members on shopping adventures. On these occasions I cannot recall Ms Gardner having difficulties with her mobility. Ms Gardner and I also occasionally went to the movies together. On one such occasion, I recall that Ms Gardner had driven 70 km to Joondalup, when she got out of the vehicle she demonstrated no restrictions in her movements. She was able to walk to the cinema without any obvious impediments in her mobility. She was then able to sit through an entire movie without any complaint of back pain before driving back home.
15Ms Gardner and her husband have driven to NSW on two occasions whilst I have known her. I understand that Ms Gardner did most of the driving as she did not like her husband driving her car. The first trip was in 1999/2000 and the second in May 2001. Ms Gardner and her husband also travelled by plane to Singapore in September 2001 and Queensland in 2003.
16Ms Gardner recently relocated to NSW. Ms Gardner drove her own vehicle from Guilderton to NSW (and her husband drove his vehicle). On the day of her move, I observed Ms Gardner bend down to pick up a washing basket full of groceries, carry the basket outside to her husband's car, bend over again and pack the groceries into the vehicle. Ms Gardner did not appear to be restricted in her movements nor did she (in my presence) complain of back pain following the activity.
[signed]Date: 23 June 2003
SPARKE HELMORE
Solicitors
Ms Peace resides in Western Australia and is employed providing care aid and home help. She also works as a cook in the kitchen of a country club. She said that she provided home care assistance to the applicant for about four years. Ms Peace said that she was unable to complete all tasks referred to in clause 6 of her statement after the respondent reduced her home help from 4½ hours per week to 3 hours per week.
Ms Peace gave evidence that she and a friend exercised on the applicant’s treadmill exercise machine mostly twice a week from January 2001 until July 2001. It was during this time that she observed the applicant using the treadmill. Clause 11 of her abovementioned statement indicates that Ms Peace observed the applicant on her treadmill for several hours continuously. When cross‑examined by Mr Selby about this she said:
No, I won't say "without interruption" at all. That's incorrect. She went on to the treadmill, then she got off and she'd do stretching or cooling down exercises. She'd get onto something else, then she'd get back onto the treadmill, constantly several hours but she would be on it for half an hour, then you do your slow down exercises, get on the other machine, then you go back.

Mr Selby also cross‑examined Ms Peace in respect of clause 16 of her statement and she said that the basket which was packed with groceries was too heavy for her to carry. Mr Selby referred to the applicant’s evidence that she did not carry the basket but dragged it out to the car. Ms Peace said:
And I went to lift it off the bench. It was too heavy. … and the truth of the matter is that I couldn't lift it and she [the applicant] did.
Ms Peace confirmed her opinion expressed in clause 7 of her statement, that the applicant was able to perform many of the duties that she was requested by the applicant to carry out.
The respondent tendered a report dated 27 January 2004 prepared by Ms Annette Cursley JP, a physiotherapist and ergonomic consultant (Exhibit R3). Ms Cursley conducted a home assessment for the applicant at her home in Moruya, NSW on 23 January 2004 and was aware at that time that the applicant had made compensation claims for her knees, right wrist and back. Ms Cursley's comprehensive report recommends household cleaning assistance at the rate of 1.5 (1½) hours per week.
The Tribunal has considered all of the above evidence and accepts the applicant’s opinion that when comparing her current NSW residence with her prior larger WA residence: "the jobs don't change. The size of the house has changed". The applicant’s husband gave evidence that he considered that 2 hours per week home help was adequate for his present home in NSW. Ms Cursley's expert assessment is that 1½ hours per week home help is adequate for the applicant’s current NSW home given that she and her husband can manage some of the lighter tasks. Although Ms Peace considered that 3 hours was inadequate to permit her to perform all of the home help tasks that she was requested to perform by the applicant, she is of the opinion that many of these tasks were able to be undertaken by the applicant. Based upon all of the evidence, the Tribunal finds that on the balance of probabilities the respondent correctly assessed on 4 June 2002 that an entitlement at that time of 3 hours per week for household services, pursuant to s 29 of the 1988 Act, was appropriate.
There is no dispute between the parties that the injury to the applicant’s knees on 26 July 1986 occurred prior to 1 December 1988 and is provided for by the 1971 Act. The parties are also in agreement that the applicant’s original statement of claim lodged with the County Court of Victoria in respect of injury to her knees was lodged by the applicant on 30 November 1988.
It is also an accepted fact that on 11 November 1989 the applicant fell on to a step at her home and injured her back. Liability for compensation under the 1988 Act was accepted by the respondent on 30 January 1990 for injury to the lower back region and aggravation of right knee injury.
On 14 November 1989 Mr Haw, an orthopaedic surgeon, provided the following written opinion:
I saw Mrs. Smith for reassessment today and it is quite clear that she still has ongoing problems of great significance in relationship to her right knee with an active synovitis and in addition following her recent fall at home after work, has in addition developed sciatic pain almost certainly referred from the facet joints in the lower lumbar region of her spine. At the present time she has quite marked root irritation.
Dr Alan Home, a consultant in occupational medicine, gave sworn telephone evidence in respect of his written opinion dated 30 January 2003 (Exhibit R2). Dr Home's report includes the following assessment in respect of the applicant’s back condition:
Mrs Gardner presents with a history of longstanding symptomatic degenerative disease in the lumbar spine, with specific patho‑anatomical diagnoses of shallow left‑sided disc protrusion at L3/4 level, broad‑based disc protrusion at L4/5 with severe bilateral facet joint disease, ligamentum flavum hypertrophy, all contributing to chronic spinal stenosis. There is mild to moderate facet joint disease at the L5/S1 level.
These complaints appear to have been rendered symptomatic initially at the time of a fall in 1989 and have continued since, although with increasing treatment from 1998 until 2001.
She has exhausted invasive treatment modalities apart from spinal decompression and fusion operation and I believe that that would be a technically difficult procedure, associated with a high level of morbidity. I note that her treating surgeon, Mr O'Connor has recommended against a surgical approach.
She does maintain her back condition by undertaking water‑based activities at least twice weekly, attempting to maintain mobility at other times.
She reports little benefit from the use of analgesic medications due in part to an intolerance. She also has an intolerance for anti‑inflammatory and anti‑depressant medications.
On 28 June 1995 the applicant amended her statement of claim before the County Court to include her November 1989 back injury, and her claim alleges the following:
Because of the instability of her knees the plaintiff has suffered a series of falls, the first of which occurred on or about November 1989 causing injury to her lumbar spine and she has developed arthritis in the lumbar spine with nerve root irritation and bilateral sciatica.
The amended claim was settled on 4 April 1997 and the applicant received $300,000 in settlement of her claim. The Tribunal has already found that the work‑related injuries to the applicant’s back on 11 and 14 November 1989 were provided for by the defendant in the common law settlement of $300,000 on 4 April 1997.
The Tribunal finds that the injury to the applicant’s back in November 1989 was partly due to the instability to her knees. However, it is clear from Dr Home's evidence that the applicant had a longstanding degenerative disease in the lumbar spine and that the injury to her back in November 1989 aggravated her degenerative disease condition. It also appears that the applicant first sought treatment for the aggravation of her degenerative disease condition on 14 November 1989 when she consulted Mr Haw.
Section 7(4) of the 1988 Act provides the following:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Based upon the evidence the Tribunal finds that the applicant sustained an injury to her lumbar spine on 14 November 1989 pursuant to s 7(4)(a) of the 1988 Act, being partly due to an aggravation of her degenerative lumbar spine disease.
Section 48(4) of the 1988 Act provides the following in respect of compensation not payable where damages are recovered:
(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
In this case the applicant received common law damages of $300,000 on 4 April 1997 in respect of her accepted work‑related injuries, which included her back injury in November 1989. Accordingly, compensation in respect of her back injury is not payable thereafter pursuant to s 48(4) of the 1988 Act.
As the 1971 Act applies to the applicant’s work‑related knee injuries, s 99 of the 1971 Act applies. This means that the applicant is not entitled to receive further compensation benefits from the respondent under the 1971 Act, until the total amount of compensation payable to her by the respondent under the 1971 Act exceeds the amount of damages recovered by her via the settlement of her common law claim.
It is noted that at the date of the hearing the respondent has not made any attempt to recover payments of compensation made to the applicant either under s 99 of the 1971 Act concerning the work‑related injuries that were suffered by the applicant prior to 1 December 1988 or under s 114 of the 1988 Act in respect of the applicant’s back injury in November 1989. This matter is therefore not before the Tribunal for determination.

DECISION

The Tribunal affirms the decisions under review made by the respondent on 4 June 2002 and 30 June 2003.

I certify that the fifty‑eight [58] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr W.G. McLean, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing:  7 October 2003
28 April 2004
30 April 2004
Date of Decision:  8 June 2004
Counsel for the applicant:            Mr H. Selby
Solicitors for the applicant:          Elizabeth Fleming & Associates
Counsel for the respondent:        Mr B. Kelly

Solicitors for the respondent: Sparke Helmore