GLENNOS CONSTRUCTIONS PTY LIMITED v PAUL BECCARI [1993] NSWCA 109

GLENNOS CONSTRUCTIONS PTY LIMITED v PAUL BECCARI

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA, SHELLER JA and CRIPPS JA 22 September, 1 October 1993 [1993] NSWCA 109

The respondent received awards pursuant to ss 66 and 67 of the Workers Compensation Act. The appeal concerned the award given pursuant to s 67. The original notice of appeal alleged the trial judge erred in finding the respondent "a most extreme case". At the hearing of the appeal the appellant sought to amend the notice of appeal (without objection) to allege the trial judge erred in taking into account the stress and anxiety suffered by the respondent by reason of his bowel condition in assessing damages for pain and suffering resulting from a loss as this was not a loss mentioned in the Table.

Held:

If the trial judge was entitled to have regard to all the consequences of the accident, it was open to him to hold the respondent "a most extreme case".

The trial judge was not asked to make a finding that the bowel incontinence was a loss mentioned in the Table. The trial judge erred in taking into account the respondent's bowel condition when assessing the award for pain and suffering.

No nexus was established on the evidence between the finding for "impairment of the pelvis" and the bowel condition. On the evidence the bowel condition was the result of the injury to the lower rectum and anal canal. Appellant to pay the costs of the appeal as the issue the appellant succeeded on was not raised until the hearing of the appeal and the appellant urged the trial judge to take into account the matter that led to the error.

Mahoney JA. The facts are set out in the judgment of Cripps JA.

The damages which may be granted under s 67 of the Workers Compensation Act 1987 are limited. Damages may be given only for 'pain and suffering resulting from the loss' there referred to, namely, 'a loss mentioned in the Table to' the relevant part of the Act. If a worker has pain and suffering resulting partly from a Table loss and partly from a loss not referred to in the Table, there must in principle be a dissection; he can be given damages for the former but not for the latter. This was referred to in Concrete Constructions Group Pty Ltd v Nelson (Court of Appeal, 5 April 1993, unreported).