SRA v Akhnoukh

[2000] NSWCA 321

NEW SOUTH WALES COURT OF APPEAL

CITATION:         SRA v Akhnoukh [2000]  NSWCA 321 revised - 13/11/2000

FILE NUMBER(S):
40095/99

HEARING DATE(S):          10 April 2000

JUDGMENT DATE:           10/11/2000

PARTIES:
State Rail Authority of New South Wales v Adel Roushdy Akhnoukh

JUDGMENT OF: Mason P Meagher JA Beazley JA   

LOWER COURT JURISDICTION:    Compensation Court

LOWER COURT FILE NUMBER(S):               20830/97

LOWER COURT JUDICIAL OFFICER:          Maguire CCJ

COUNSEL:
Appellant: P. Steinberg
Respondent: J. Hislop QC/T. McKenzie

SOLICITORS:
Appellant: W R Harvey & Associates
Respondent: McClellands

CATCHWORDS:
Workers Compensation Act ss.66, 67, 68A - primary and additional injury sustained between 1981 and 1997 -

LEGISLATION CITED:
Workers Compensation Act, 1987 ss 16, 66, 67 and 68A

DECISION:
1. Appeal dismissed with costs.

JUDGMENT:

- 5 -

- 5 -

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40095/99

MASON P
  MEAGHER JA
  BEAZLEY JA

Friday, 10 November 2000

STATE RAIL AUTHORITY OF NEW SOUTH WALES v ADEL ROUSHDY AKHNOUKH

FACTS

The respondent employee was “medically retired” in 1997 due to degenerative changes flowing from injuries sustained in the workplace between 1978 and 1997. An award was made under ss.66 and 67 of the Workers Compensation Act on the basis of an 18% permanent impairment of the workers back and 13.5% loss of the use of the respondent’s left leg, each reduced under s.68A; and a sum of $9,000 was ordered for pain and suffering under s.67. The appellant employer disputes the finding of further “injury” within the terms of the Workers Compensation Act and whether as a question of fact such alleged injury took place after commencement of the provisions upon which the respondent relies.

HELD

1. The evidence of the medical practitioners was not taken up in oral evidence and not subject to cross-examination; the appellant cannot complain having foregone its opportunity to cross-examine the documents.

ORDERS

1. Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40095/99

MASON P
  MEAGHER JA
  BEAZLEY JA

Friday, 10 November 2000

STATE RAIL AUTHORITY OF NEW SOUTH WALES v ADEL ROUSHDY AKHNOUKH

JUDGMENT

1. MASON P:          For reasons set out by Meagher JA, whose judgment I have had the benefit of reading, this was not an easy case.

2. The overwhelming thrust of the lay and medical evidence was that the respondent was forced out of work in 1997 due to degenerative changes stemming entirely from the impact of two work injuries (in 1978 and 1981) upon his back.

3. Was there evidence of more?  In particular, was there evidence of exacerbation occurring between 30 June 1987 and 1997?

4. During all of this period the worker was on light duties and he did not lift baggage.  The light duties included standby guard duties and office duties.  The pain became progressively worse irrespective of whether he was doing guard work or clerical work. 

5. Most doctors addressed a history confined to the two specific injuries and expressed opinions based on the impact of the same.

6. There was however a most slender thread of evidentiary material from the worker capable of showing that the back problems were exacerbated by the work experience during the period of light duties (CB 5 T-D, 10 H-K).  The relevance of this evidence to the matter now at issue was not wholly destroyed by the concessions in cross-examination that the progressive deterioration of the back between 1981 and 1993 was irrespective of whether he was doing clerical or guard work.

7. As Meagher JA points out, there were unresolved ambiguities in the untested medical evidence (see esp CB 49, 61-63).  I see no reason why they should be resolved in favour of overturning the award of the primary judge.

8. I agree with what Meagher JA has written about the s6A(6) issue.  The appeal should be dismissed with costs.

9. MEAGHER JA:  This is an appeal by the State Rail Authority of New South Wales against an award made by Maguire CCJ in favour of the respondent.

10. The award was made under ss.66 and 67 of the Act. As far as s.66 was concerned, his Honour ordered the appellant to pay to the respondent worker (a) $10,800.00 in respect of an 18% permanent impairment of his back, and (b) $10,125.00 in respect of a 13.5% loss of the use of the respondent’s left leg at or above the knee. (The two amounts of $10,800.00 and $10,125.00 seem to be $12,000.00 and $11,250.00 respectively, each reduced by 10% to give effect to the provisions of s.68A(6) of the Act). As far as s.67 was concerned, his Honour ordered the appellant to pay the respondent the sum of $9000.00 for pain and suffering, to be equally apportioned between past and future.

11. In order to understand the ultimate question of law in this appeal, the appeal concerns questions of fact, questions which are extraordinarily elusive.  This is contributed to, at least in part, by the fact that, as now seems almost universal practice, none of the medical practitioners who saw the respondent (six on behalf of the respondent, two on behalf of the appellant) gave oral evidence.  It is also contributed to, if I may say so with respect, by the fact that his Honour’s judgment is, no doubt due to the exigencies of his list, almost unintelligible: thus his Honour frequently refers to “a recurrence” without saying of what; and his Honour refers to the injury which the respondent suffered “on 11 February 1997” (emphasis added).  However, counsel agreed that we should read “recurrence” as meaning “exacerbation of back pain”, and “on” as meaning “from 1981 to 1997”.

12. It is not in doubt that the respondent was at all times employed by the appellant as a guard with the railways; and that he sustained two frank injuries whilst so employed, one in 1978 and one in 1981.  The second of the injuries seems to have been more substantial than the first, and in this he sustained a prolapse or protrusion of the L4/5 disc.  When he returned to work after the second accident he was relegated to somewhat lighter duties, and in 1993 his work load was further reduced by assigning to him only light clerical duties.  He stopped working for the appellant in 1997, when he “was medically retired”.  What, however, is very much in dispute is whether from 1981 to 1997 he suffered a further “injury” within the meaning of that term in the Workers’ Compensation Act from the nature and quality of his work, and in particular whether such injury (if it happened at all) took place after 30 June 1987, when the present Act, containing the provisions on which the respondent relied, came into force.

13. His Honour held that such additional injury did occur and, effectively did occur after 30 June 1987.  Learned counsel for the appellant submitted that it did not; and, being limited to an appeal on a question of law, he had to submit that there was no evidence of any such injury.  This is the “ultimate question of law” to which I have referred.  Learned senior counsel for the respondent submitted that there was some evidence of such injury, even if it was hardly massive.

14. For the respondent, it was argued that the evidence consisted of : evidence of continual pain during the relevant period, evidence of deterioration of the spine during that period, and some medical evidence that both the pain and the deterioration were due to the nature and quality of his work.  As far as the first of these elements is concerned, the pain, it was not in dispute: this was the “recurrences” of which his Honour spoke.  As far as the second of these three elements is concerned, i.e. spinal deterioration, reliance was placed on the radiological evidence.  On 30 November 1987 Dr William Gayed observed: “There is an oblique protrusion of the vertebral disc at L4-5 in fairly substantial degree”. By 7 July 1988 Dr DG Seaton said: “He still has an L4/5 disc protrusion  which has protruded more to the left side”.  As to the cause of the worker’s change of condition, the respondent was able to point to a letter of Dr Marnie of 4 November 1998 which was in evidence, and which said,

    “Mr Akhnoukh has a probable L4-5 disc lesion and I think this is due by way of cause to his initial incident at work in 1978 with a substantial aggravation in 1981 and that the condition would have progressed over the years, not because of disease as such but because of his original injury to the disc, with the aggravation due to the nature and condition of his work.”

    A multitude of semantic points were taken as to the meaning of the radiological evidence and Dr Marnie’s report, but at first blush they do seem to support the respondent’s case, and if the appellant chose to forgo its opportunity to cross-examine on those documents it has no-one but itself to blame if this Court does take them as deciding the matter.

15. The appellant also argued as to the correctness of his Honour’s mathematics in making deductions from the lump sums awarded, and in particular accused his Honour of confusing the deductions permissible in s.16 with those permissible under s.68A. However, as (a) any confusion is reflected only in his Honour’s reasons, not his award, and (b) as far as the award is concerned, the only deduction made was that which his Honour was bound to make under s.68A(6), the appellant’s point in this respect evaporates.

16. In my view the appeal should be dismissed with costs.

17. BEAZLEY JA: I agree with Mason P and Meagher JA and have nothing more to add.

LAST UPDATED:              13/11/2000