GOVERNMENT SUPPLY DEPARTMENT v ELSIE ABBOTT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Mauoney JA, MEAGHER JA and SHELLER JA 21 April, 7 May 1993 [1993] NSWCA 122 FACTS: The respondent/plaintiff was employed by the appellant/defendant as a cleaner at Government High Schools. She suffered a knee injury caused by repeated trauma resulting from the lifting of heavy chairs in the course of her duties and was awarded damages, inter alia, under s.67 of the Workers Compensation Act 1987, (NSW). The appellant claims the award was excessive. HELD: (per curiam) (1) s.67 allows for awards to be made as a proportion of the amount available for the "most extreme case" as allowed for in the legislation at the dates of the accident. The amount should not be calculated by reference to the amount at the date of trial. (2) Taking quadriplegia as the most extreme case, this injury, although requiring knee surgery, must occasion less than fifty per cent of the maximum. Accordingly, an award is made in respect of twenty five per cent of the most extreme case. Mahoney JA. I agree with the orders proposed by Meagher JA. It is accepted that the learned trial judge erred in awarding $23,125 for pain and suffering under s 67 of the Workers Compensation Act 1987. His award must therefore be set aside to this extent. The appeal is by way of rehearing: at least, it is in the circumstances appropriate that this Court reassess the amount of the award. Giving full effect to the evidence and the findings of the trial judge, as to primary facts, I do not think it was open to his Honour to conclude that the applicant should have one half of the maximum statutory amount. I agree with Meagher JA that one quarter of that amount is the sum that should be awarded. Meagher JA. This is an appeal by an employer against an award made by his Honour Judge Moroney under the Workers" Compensation Act 1987 (NSW) in favour of its employee Mrs Elsie Abbott. She had been employed as a cleaner at Government High Schools. That involved repeated lifting of heavy chairs which knocked against her right knee. This repeated trauma became painful and led to a considerable swelling of the knee. This is the injury, dated 3 September 1989, of which she complains. Since that date, she has tried on a few occasions to resume work, but the attempt on each occasion has never exceeded two or three days. His Honour found her a completely honest witness, and the contrary has never been suggested. Her medical adviser was Dr Michael Walsh, who has seen her on a number of occasions. He performed an arthroscopy on her knee in mid-October 1987 and found a2cm area of full thickness cartilage loss from the medial femoral condyle. That lesion was considered by Dr Walsh as consistent with a history of repeated minor traumas. He debrided the knee. He reported in November 1987 that her pain was considerably improved and commenced to put her on full weight bearing and arranged for physiotherapy. Despite initial optimism about her ability 2 UNREPORTED JUDGMENTS to return to work, she never did so and is unlikely to do so again; and this is despite her very real desire to do so. It may be the case that she will eventually have to have a complete knee replacement but Dr Walsh is reluctant to undertake this procedure unless it is absolutely necessary. On 9 February 1990 a Medical Panel certified that she had not 15% of the efficient use of her right leg. His Honour made the following orders in her favour: 1) That the appellant pay her weekly compensation from the date of the injury continuing, 2) That the appellant pay her compensation of $9,252.00 under s 66 for the 15% loss of the efficient use of her right leg, 3) That the appellant pay her the sum of $23,125.00 for pain and suffering under s 67 of the Act, 4) That the appellant pay her hospital and medical expenses under s 60 of the Act, and 5) That the appellant pay her costs. The third, and only the third, of those orders is now under challenge. At the date of the injury the statutory maximum under s 67 for 'pain and suffering' was$40,000.00; at the date of judgment it was $46,250.00. His Honour intended to award one-half of the maximum statutory amount to the respondent. He manifestly did not, inadvertently operating on the view that the statutory maximum relevant to the case was that amount as it then stood. For this reason alone, the appeal must succeed. But it was also submitted that the amount was too great in any event. I am afraid that I agree with this submission. I do so with the greatest regret, as Mrs Abbott is patently a very honest and decent woman, as his Honour found. Moreover, in my view the sum of $23,150.00 could not have been disturbed if the provisions of s 67 did not place artificial limits on the amount which it is permissible to award a worker. That section requires the Court to award an amount which is reasonably proportionate to the amount payable 'in a most extreme case'. Granted that a quadriplegic is "a most extreme case', the relevant question is how does the pain and suffering, real and unpleasant as it must have been, suffered by Mrs Abbott, compare to that of a quadriplegic? The answer must be much less than one-half. She has had one minor surgical procedure, and may possibly have to have a knee replacement. She has to suffer a good deal of continuous pain. She cannot stand for long periods. She cannot walk long distances. She cannot resume her work, which causes her distress; and she cannot attend to the Duke of Edinburgh's Schemecharity work to which she is devoted. But, although more or less home bound, she is mobile and capable of using all her facilities, physical and mental. Mr Poulos QC, senior counsel for the appellant also submitted, somewhat ungallantly, that the distress which Mrs Abbott suffered in not resuming her work and not attending to her charity work did not qualify as 'distress' within the meaning of the section. The distress she suffered, so the argument ran, was caused by her inability not by her injury; but since the injury caused the inability the distress is, in my opinion, within the section. In my view, one-quarter of the maximum amount while inadequate is the appropriate award under the section. In my view, the following orders should be made: 1. Appeal allowed 2. Order 3 of the award of 16 May 1990 set aside. 3. In lieu thereof, order that the appellant pay the respondent the sum of $10,000.00. URJ GOVERNMENT SUPPLY DEPARTMENT v ELSIE ABBOTT (Sheller JA) 3 4. Order that the respondent pay the appellant's costs but to have a Certificate under the Suitor's Fund Act, 1951(NSW). Sheller JA. I agree with Meagher JA. 5 (1) Appeal allowed. (2) Order 3 of the award of 16 May 1990 set aside. (3) In lieu thereof, order that the appellant pay the respondent the sum of $10,000.00. 10 (4) The respondent pay the appellant's costs but to have a Certificate under the Suitor's Fund Act, 1951 (NSW). Counsel for the appellant: J POULOS QC/J FERNAN Solicitors for the appellant: PETER WILLIAM TURK 15 Counsel for the respondent: A J LESLIE QC/J A GRACIE Solicitors for the respondent: STEVE GREGORY MASSELOS253545