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Consequential loss

Rhodes v St Luke's Hospital Complex [2011] NSWWCCPD 46. Roche DP.

60. The test of causation in a claim for compensation for a consequential loss or impairment is the same as it is in a claim for weekly compensation, namely, has the loss or impairment “resulted from” the relevant work injury: Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123Rail Services Australia v Dimovski [2004] NSWCA 267.

Moon v Conmah PL [2009] NSWWCCPD 134. Roche DP.

The appellant car radio installer consented to an award in May 2008, for legs and right arm, but including an award respondent for injury to his left arm. He brought further proceedings this year, and assessment of additional losses to the earlier accepted parts were referred to an AMS by consent.

Left arm entitlement went to hearing. Arbitrator O’Moore determined for the respondent.

Roche DP cited causation authorities: Kooragang Cement PL v Bates (1994) 35 NSWLR 452 per Kirby P at 463-4; Sidiropoulos v Able Placements [1998] NSWCC 7; Rail Services Aust v Dimovski [2004] NSWCA 267.

Infra [44], the deputy president said: “… he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder: RTA v Malcolm (1996) 13 NSWCCR 272.

“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in s 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury.

"Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.” [45]

Later, infra [48]: “The evidence of the development of his left shoulder symptoms, and that those symptoms have resulted from the restricted use of his right shoulder, is found in the clinical notes from Dr Kay and in the medical histories in the reports from Drs Nash, Giblin and Huntsdale.

"Evidence in a medical history is evidence of the truth of the history: R v Welsh (1996) 13 NSWCCR 674; Papercoaters PL v Jessop [2009] NSWCA 1 at [42].

"Therefore, notwithstanding the shortcomings in Mr Moon’s statement, I am comfortably satisfied, based on the histories set out in the medical evidence, that Mr Moon’s left shoulder symptoms have resulted from his right shoulder injury.

“The connection between the left shoulder symptoms and the right shoulder injury – the overuse of the left shoulder as a result of restrictions in the right shoulder – is, in the circumstances of the present case, so obvious that it requires no further explanation by the medical experts: Sydneywide Distributors PL v Red Bull Australia PL [2002] FCAFC 157 at [88]-[89].” [49]

Then [51], “In respect of Conmah’s argument that Mr Moon is estopped from bringing a claim for lump sum compensation in respect of the condition of his left shoulder, it is necessary to consider the terms of the previous consent orders.

"Orders made by consent may create estoppels between the parties to the orders, however, they do so only as to those matters that are necessarily decided: Habib v Radio 2UE Sydney PL [2009] NSWCA 231 at [186]).

"The award in favour of Conmah was in respect of Mr Moon’s ‘allegation of injury’ (emphasis added) to the left upper extremity.

"Were Mr Moon to seek compensation for an ‘injury’ to his left upper extremity covered by the terms of the consent award, he would be estopped from doing so.

"However, he is not seeking compensation for an ‘injury’ to his left upper extremity sustained in the course of his employment with Conmah but is seeking compensation for a consequential loss resulting from his accepted right shoulder injury.

"That is an entirely different claim and no estoppel arises from the previous consent orders that prevent him from pursuing such a claim.

"Therefore, the consent orders in the first proceedings do not create any estoppels that prevent Mr Moon from pursuing the present claim.”

Award substituted “As a result of injuries sustained to the worker’s right shoulder in the course of his employment with the respondent employer up to 6 February 2006, the worker has developed tendonitis and a rotator cuff syndrome in his left shoulder”, part referred, and costs, and appeal costs $600 plus GST.

A: PK Simpson & Co. R: Bartier Perry.

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