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). The distinction may be artificial but it is obviously the result of a policy decision to limit the operation of s 67. I see no alternative, consistent with the terms of the Act, to the dissection of the pain and suffering in this way. In somecases, the dissection may be so artificial as to make the process seem lacking in credibility. If the policy of limiting s 67 in this way is to be maintained, it would, I think, be appropriate for the Act to be amended to enable a result more functionally satisfactory to be achieved. However, in this case the matter must be reconsidered. I agree with the reasoning of Cripps JA and the orders he proposes. Sheller JA. I have had the benefit of reading the judgment of Cripps JA and agree with it and the orders therein proposed. 2 UNREPORTED JUDGMENTS Cripps JA. This is an appeal from Judge Herkes of the Compensation Court on 28 August 1991 entering awards in favour of the respondent worker pursuant to ss 66 and 67 of the Workers Compensation Act 1987. The appeal is concerned only with the award made pursuant to s 67. On 23 February 1989 the respondent then aged 32 suffered what Herkes CCJ referred to (without exaggeration) as 'an horrendous injury' when a traxcavator he was operating went out of control. The tooth projecting from the traxcavator's bucket and penetrated his pelvis and lower bowel area. He suffered a comminuted fracture of the third and fourth segments of the sacrum and an undisplaced fracture of the left side of the pelvis extending from the base of the sacro iliac joint into the hip joint. The tooth of the bucket tore the lower rectum and anal canal completely off itsattachments and ruptured the sphincter muscles of the anal canal. It also ruptured his prostatic urethra. He remained in hospital for some weeks during which a sigmoid colostomy was created to defunction the repaired rectum and anal canal. Since the accident the respondent has had constant pain in his lower back and hip extending into the buttocks. He walks with a limp and his back has been permanently impaired. His sex life has been seriously interfered with and he is seriously disfigured. Of particular relevance in this appeal is the circumstance that after the closure of the colostomy about eight months after the accident, he has suffered from bowel incontinence. When he coughs or sneezes he is unable to contain faecal matter. The medical evidence suggested that his condition will not improve and that the consequences of his orthopaedic injuries could worsen. At the time of his accident the respondent was happily married with two children. He participated in strenuous physical activities including wind surfing, football and riding. He is unable to do any of these things at the present time. Since his accident he has attempted rehabilitation by riding a push bike for short distances and he has resumed swimming. Not surprisingly, Herkes CCJ found, as he was entitled to find, that the respondent was seriously disabled as a result of the accident. Herkes CCJ made the following award under s 66: 1. $9585 in respect of 15% loss of the use of the applicant's left leg above the knee. $2992 in respect of 5% loss of the applicant's left leg below the knee. $8008.80 in respect of 20% loss of sexual organs. $7668 in respect of 15% permanent impairment of the applicant's back. $4473 in respect of 35% impairment of the applicant's pelvis. $1874.40 in respect of 10% severe bodily disfigurement. There is no appeal from that award. Herkes CCJ also awarded the respondent, pursuant to s 67, an amount of $42,600 in respect of pain and suffering, that being the maximum amount allowable at the date of injury. Section 67 of the Act relevantly provided: ANRYWN (1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses in addition to any other compensation under this Act, an amount not exceeding $42,600. (2)... URJ GLENNOS CONSTRUCTIONS PTY LIMITED v PAUL BECCARI (Cripps JA) 3 (3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses. (4) ... (5)... (6) ... (7) In this section: "pain and suffering" means: (a) actual pain; or (b) distress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment.' Section 65 provided: (1) In this Division: "loss", in relation to a thing, means: (a) the loss of that thing; or (b) the permanent loss of the use, or of the efficient use, of that thing. (2) In this Division, a reference to a loss mentioned in the Table to this Division includes a reference to: (a) the permanent impairment of the back, neck or pelvis or any other permanent impairment added to the Table; and (b) severe facial disfigurement or severe bodily disfigurement.' It is apparent that Herkes CCJ had regard to, inter alia, the consequences to the respondent of his serious bowel injury in concluding that he came within the words 'a most extreme case'. This is not surprising because the trial proceeded upon the basis that the appellant was to be compensated for all the consequences of the injury. In his submission to Herkes CCJ, Mr Ingram, who also appears on behalf of the appellant in theappeal, specifically referred to it in his submissions directed to the respondent's s 67 entitlement. In the Notice of Appeal as originally filed, it was alleged that Herkes CCJ erred in finding that the respondent was relevantly 'a most extreme case'. When the matter came on for hearing, Mr Ingram sought leave to amend the Notice of Appeal to allege that Herkes CCJ erred in taking into account the stress and anxiety the appellant suffered and will continue to suffer by reason of his bowel condition because that condition was not the result of a loss mentioned in the Table. Mr Small, on behalf of the respondent, did not object to the ground being raised and, accordingly, leave was granted. Mr Ingram did not, I think, abandon the ground of appeal as originally filed, viz that the respondent's pain and suffering from the consequences of the injury were not sufficiently severe to entitle him to 'a most extreme case' status. However, his principal submission became that Herkes CCJ erred in having regard to the respondent's bowel incontinence when assessing compensation for pain and suffering. He did not dispute, if I understood his argument correctly, that to qualify as 'a most extreme case' it was not necessary for the respondent to be 'the most extreme case'. The cases have made it clear that the words are intended to embrace a category of cases (eg Rapford Pty Ltd (T/as Gilbert Foil Containers Co v Williams, Court of Appeal, 25 June 1993, unreported). Furthermore, Mr Ingram does not dispute thatthe characterisation of a worker's pain and suffering 4 UNREPORTED JUDGMENTS and where that worker should be placed within the scale are, in essence, discretionary decisions which will not be interfered with by the appellate court otherwise than in accordance with established principles. However, he submitted that it having been established that Herkes CCJ erred in having regard to the respondent's bowel incontinence, this Court ought make a fresh assessment and that if bowel incontinence is excluded the respondent was not relevantly 'a most extreme case'. If I understand Mr Small's argument correctly, it is, first, that even if bowel incontinence be disregarded it was open to Herkes CCJ to hold the respondent 'a most extreme case'. Secondly, and in the alternative, that this Court ought not interfere because Herkes CCJ might have concluded that the respondent's bowel condition was relevantly connected with the injury to, and hence impairment of, his pelvis. In Concrete Constructions Group Pty Limited v Nelson (Court of Appeal, 5 April 1993, unreported), the Court was concerned with the meaning of the words 'impairment of the pelvis' where appearing in the Table. The worker suffered severe bowel and bladder impairment and claimed that because the organs were within the pelvic cavity, he suffered relevant 'impairment of the pelvis' so as to qualify for compensation under s 66 for a loss mentioned in the Table. The worker's submission was rejected. He was, however, entitled to compensation for pain and suffering caused byhis bladder and bowel condition because it resulted from the impairment of his back — a loss mentioned in the table. Had Herkes CCJ been entitled to have had regard to all the consequences of the accident (as he was, in effect, invited to do), I am of the opinion that it was open to him to hold the respondent 'a most extreme case'. But I am not persuaded that once the respondent's bowel condition was excluded, it was open to Herkes CCJ to come to the same conclusion. As I have said, Mr Small has submitted that the respondent was 'a most extreme case' even if his bowel condition were ignored. In support of this submission, he sought to downplay the consequences to the respondent of it. However, it is clear that Herkes CCJ thought that it occasioned the respondent great distress and anxiety and would continue to do so in the future. As to the respondent's second submission, I merely note that Herkes CCJ made no finding that the respondent's bowel incontinence was the result of a loss mentioned in the Table. That was because, as I have said, Herkes CCJ was not asked to make such a finding. The respondent, in fact, injured his pelvis and, as a result, was found to have suffered a 35% impairment of his pelvis but no attempt was made to establish any nexus between that and his bowel condition. Indeed, on the way the evidence was left, it is not easy to see how Herkes CCJ could have concluded otherwise than that the respondent'sbowel incontinence was the result of direct injury to his lower rectum and anal canal. It follows, in my opinion, that Herkes CCJ erred because he took into account in his award for pain and suffering the respondent's bowel incontinence. I do not, however, think that this Court ought to re-assess the respondent's entitlement. Although it is desirable that, if possible, litigation should not be protracted, the respondent in the present case is, I think, entitled to the discretionary judgment of the Compensation Court after that Court has determined whether, and if so to what extent, the respondent's bowel condition is related to any loss mentioned in the Table. The matter was not investigated at trial and, although, as I have said, the material in the appeal book would suggest there may not be any relevant nexus the respondent should not be denied the opportunity of establishing that URJ GLENNOS CONSTRUCTIONS PTY LIMITED v PAUL BECCARI (Cripps JA) 5 nexus if, in fact, it exists. I am of the opinion, therefore, that the appropriate order is that the appeal be upheld and the matter remitted to the Compensation Court to be dealt with according to law. In my opinion, the appellant should pay the respondent's costs of the appeal. I think I should depart from the usual order for the following reasons. First, because the issue on which the appellant was successful was not raised until the hearing of the appeal. Second, because on the ground of appeal as originally filed and maintained until the day of hearing, the appellant wasunsuccessful. Third, because at trial the appellant urged Herkes CCJ to take into account his bowel condition which resulted in error. The transcript records that Mr Small did not oppose the amendment because he had formed the opinion that the amendment could not affect the outcome of the appeal. The only question then is whether that unwise evaluation should have an effect on the order the Court makes on the question of costs. I do not think it should. Had Mr Small objected to the ground being raised, I have little doubt that it would have been refused. In that event, the appellant would have lost and would have been obliged to pay the costs of the appeal. Accordingly, I propose the following orders: 1. Appeal allowed. 2. The award of the Compensation Court made pursuant to s 67 of the Workers Compensation Act 1987 be set aside. 3. The matter be remitted to the Compensation Court to be dealt with according to law. 4. The appellant to pay the respondent's costs of the appeal 1. Appeal upheld. 2. Matter remitted to the Compensation Court to be dealt with according to law. 3. Appellant to pay the respondent's costs of the appeal. Counsel for the appellant: J Ingram Solicitors for the appellant: Kell Heard McEwan and Lough Counsel for the respondent: TN Small Solicitors for the respondent: Carroll and O'Dea