HALTRADE PTY LTD (AS TRUSTEE FOR THE BRAY FAMILY TRUSTS) v BRAY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and SHELLER JJA 18 February 1992, 27 February 1992 [1992] NSWCA 105 Appeal from Compensation Court — Applicant rendered paraplegic by accident — Loss of sensation and function of sexual organs -No physical damage — Whether Applicant had suffered "loss of sexual organs" within s16(1B)(a2) of Workers Compensation Act 1926 — Held: Loss of function of sexual organs was not loss of sexual organs — Powder River Pastoral Co Pty Ltd v Wadley (Court of Appeal, 13 December 1983, unreported) discussed. Mahoney JA On 26 February 1984 the respondent/applicant was injured in a motorvehicle accident. Her contention was that she suffered a spinal cord injury which rendered her a paraplegic. It is accepted that, although there was no physical injury to her sexual organs, the result of the spinal cord injury and the paraplegia was that she had no sexual feeling. She had, in respect of sexual intercourse, as she said, "no feeling whatsoever, no function at all". She is not able to contract her muscles in the genital area and has no urethral sensation. The applicant commenced proceedings in the Compensation Court of New South Wales claiming compensation under, inter alia, s16(1B)(a2) of the Workers Compensation Act 1926. It is accepted that the validity of her claim is to be determined under the 1926 Act. On 12 September 1990 his Honour Judge Moran made an award in her favour for lump sum compensation of $14,650 based upon a finding of "total loss of use of the applicant's sexual organs". The respondent to the application Haltrade Pty Ltd has appealed to this Court against his Honour's award. The matter has proceeded upon the basis that an appeal lies to this Court from the award and that the appeal extends to fact and to law. It has not been suggested that leave to appeal is necessary: if it be necessary, that leave should be granted. As I have said, the plaintiff's case is based upon s16: no other basis has been suggested. As far as is here relevant s16 provides: "16(1) A worker who has received an injury mentioned in the first column of the table hereunder set forth shall be entitled to receive from his employer by way of compensation for that injury, in addition to any other compensation prescribed by this Act, the amount indicated in respect of that injury in the second column of that table. (1B)(a) A worker who has received an injury which is not or is not wholly an injury mentioned in subs(1BA) or the table hereunder set forth and which has resulted in severe facial disfigurement shall be entitled to receive from his employer by way of compensation for that injury, in addition to any other compensation prescribed by this Act, an amount, not exceeding in any case $7,900, as may be agreed upon, or in default of agreement as may be assessed as appropriate by a medical panel in accordance with the provisions of this subsection. 2 UNREPORTED JUDGMENTS (a2) A worker who has received an injury resulting in total or partial loss of sexual organs shall be entitled to receive by way of compensation for that injury, in addition to any other compensation prescribed by this Act: (i) such amount (not exceeding $14,650) in respect of total or partial loss of sexual organs; and (ii) in the case of a woman, such amount (not exceeding $14,650) in respect of total or partial loss of one or both breasts, as may be agreed upon or, in default or agreement, as may be assessed by the Court as appropriate. (4) For the purpose of the said table the expression 'loss of' includes 'permanent loss of the use of'. (5) For the purpose of the said table the expression 'loss of' also includes the 'permanent loss of the efficient use of' but in such case a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount. The loss of sexual organs and similar matters are not referred to in the table set forth in the section. It is not in question but that the loss which the plaintiff suffered, so far as it relates to her sexual organs, is a loss only of their relevant function. The issue is whether "loss of sexual organs" within the subsection includes mere loss of function. Upon the ordinary reading of the terms of the section, "loss of sexual organs" means loss of the organs as such and not mere loss of the function of them. This, in my opinion, is clear from the terms of s16. Provision is made, where deemed necessary, for the relevant "loss" to include loss of the use of or efficient use of the particular part of the body: this is provided for in s16(4) and (5). But that extension extends only to the purposes of the table: it does not extend to the operation of s16(1B)(a2). That provision must be construed without the assistance of subsections (4) and (5). The learned trial judge based his conclusion that the provision extends beyond loss of the organs to loss of the use or function of the organs upon the decision of this Court in Powder River Pastoral Co Pty Ltd v Wadley (Court of Appeal, 13 December 1983, unreported). With respect, I do not think that the decision in that case supports the conclusion arrived at by the learned judge. In that case the court was concerned with a question different from that which has now been raised. The applicant in that case had suffered the loss of a testicle. As Moffitt P recorded, it was conceded before the Workers Compensation Commission that the testicle was a "sexual organ" within the section and that accordingly the requirements of the provision had been satisfied. The issue which was before the court in the Powder River case was the determination of the factors by reference to which the compensation to be awarded to the applicant was to be assessed. The provision allowed compensation to be awarded "not exceeding $14,650". The court was to assess the amount which, below that limit, was to be awarded in a particular case. One suggestion had been that the award was to be limited to the amount of the economic loss suffered by the applicant. That suggestion was not accepted by the court. The court held that, within the statutory limit, the assessment could be made by reference to the extent to which the loss had interfered with the enjoyment of life or caused financial loss in terms of earnings or expense or the like. It was, in the opinion of Moffitt P, no error of law for the Commission to fix the amount to be awarded by reference to the kinds of considerations applied in WRALTRADE PTY LTD (AS TRUSTEE FOR THE BRAY FAMILY TRUSTS) v BRAY (Clarké JA) assessing compensatory damage for personal injury at common law and accordingly including compensation for pain, suffering and the like. Nor was compensation to be assessed by, for example, arriving at an amount graduated by reference to the maximum and the extent of the loss incurred. It was in the course of considering the factors relevant to the assessment of the amount of compensation that Moffitt P said that the subject of the compensation was the injury and the detriments flowing from it and that, in the passage to which the learned judge in his judgment referred, I said that the Commission had the right to have regard to the nature and extent of the detriments suffered by the worker. But nothing that was said in the Powder River case indicates that it was the view of the court that, for the right to compensation to arise at all, it was not necessary that there be a "loss of sexual organs" or that the loss of the use of the organs or the capacity to use them was sufficient. In my opinion, therefore, the appeal should be upheld with costs. The award to the plaintiff of the lump sum compensation of $14,650 should be set aside. It appears from the application made to the Compensation Court that the applicant's claim for compensation extended, or may have extended, beyond the mere claim under s16. It is therefore appropriate that this Court order that the proceeding be returned to the Compensation Court to be dealt with in accordance with the orders which I have proposed. Clarke JA I agree with Mahoney JA. SHELLER JA: I agree with Mahoney JA. Appeal upheld with costs. Award to the plaintiff of $14,650 set aside. Proceeding to be returned to the Compensation Court. Counsel: Appellant: J S Coombs QC/J F Davis Respondent: S J Stanton Solicitors: Appellant: N W Aussel Respondent: Carters