REGAL PAINTS PTY LTD v WASSON; REGAL PAINTS Pty Ltd v VELLA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and Cripps JJA 19 November 1992, 3 June 1993 [1993] NSWCA 228 WASSON'S CASE WORKERS COMPENSATION — awards ordered under s66, s67, and s68 Workers Compensation Act 1987 — employer appeals on grounds mistakes of fact and law in percentage findings of loss in award under s66 and s68; 2 appropriate assessment of s67 award was to calculate 30% of maximum amount fixed for most extreme case; 3. on basis that no difference between compensation under Workers Compensation Act and damages for non-economic loss MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 576 should be applied in regard to interest Held as to 1 no misunderstanding of fact or law on evidence; 2 each case must be judged on merits, and no error shown that discretionary type judgment miscarried here; 3 Gogic directed to basically different situation and not applicable. VELLA'S CASE WORKERS COMPENSATION — second appeal against similar orders for similar injuries to co-worker involved in same accident — same matters argued — no different considerations — same conclusions. Mahoney JA Having regard to the principles which have been established in this regard, I agree with the judgment of Priestley JA. Priestley JA Mr Wasson's case. Mr Wasson, the respondent in the first of thesetwo appeals was injured at work on 30 March 1989 He was employed by the appellant Regal Paints Pty Ltd His injuries, principally burns, were the result of an explosion which caused a fire Mr Vella suffered similar injuries in the same accident Mr Wasson applied to the Compensation Court for compensation under the Workers Compensation Act 1987 ("the Act'). His case came before his Honour Judge Gibson on 15 November 1991 On 30 March 1992 his Honour delivered judgment as follows: "This matter involves an assessment of the amount to which the applicant is entitled under s66 and s67 Weekly payments of compensation and medical and hospital expenses have been paid by the insurer. The following percentage losses for severe bodily disfigurement at 35% amounting to $6560 and 30% severe facial disfigurement amounting to $6645 as found by the Medical Board should be awarded. In addition these were the following losses of the right and left arms: 5% of right arm above elbow $3408 5% of right arm below elbow $3195 5% of left arm above elbow $3195 40% of left arm below elbow $23856 There shall be an award for the applicant for all the above losses, together with interest at 12% in each case from the date of injury on 30th March, 1989 to date. In addition I feel that the nature of the applicant's injuries require the maximum amount of $43,700 under s67, together with interest at 12% on $30,000 from 30th March, 1989 to date." 2 UNREPORTED JUDGMENTS His Honour also made a costs order in the worker's favour Orders and awards were formally entered in accordance with his Honour's judgment. The appeal is not limited to questions of law s32(4) Compensation Court Act. The first point taken raised questions of fact concerning the awards for the arms' losses These awards were made pursuant to s66 and s68 of the Act and the Table of Compensation for Permanent Injuries which follows s73. It was submitted that the medical evidence before the trial judge concerning the injuries to the worker's arms for which compensation was claimed under s66 showed that the "things" (to use the word from s66) lost by the worker were only the injuries described in the Table as "loss of right arm below elbow" and "loss of left arm below elbow"; the evidence did not justify, it was said, the percentage findings of loss of both right and left arms at or above elbow. A submission was also made based on Apps v Commissioner for Railways (1972) 1 NSWLR 272 suggesting that double dipping had occurred because of the way in which Judge Gibson had approached this case and that had led him into error The facts of the case however seem to me not to be in the area dealt with by Apps. There the worker had claimed, under s16 of the 1926 Act (of which s66 is the successor although in by no means identical terms) for the loss of two joints of each of two fingers. The Table following s16 corresponding to the Table following s73 of the 1987 Act listed a number of injuries One was "Loss of... a joint of a finger" Another was "Loss of the lower part of either arm, either hand, or five fingers of either hand". The court, Sugerman P and Asprey and Holmes JJA, held that the correct way of calculating the compensation was to take the item which referred to the lower part of an arm and assess the percentage of the diminution of its full efficient use as the result of the deprivation of two joints of each of two of its fingers rather than treat the worker's loss as one of four separate joints. This was on the basis that the particular injuries claimed for by the worker were not specified in the Table and as the actual injuries took the form of the loss of part of a larger organ whose loss was specifically mentioned the proper method to follow was to take a percentage of the amount allowable for the loss of the full efficient use of the larger organ. In the present case there was evidence before the trial judge of the loss of a proportion (but not all) of the four separate "things" each specifically mentioned in the Table following s73. S68 authorised the trial judge to award as compensation under s66 for such proportionate loss an appropriate percentage of the compensation payable under s66 for the total loss of the "thing". The combination of the facts and the way the "things" the effective use of a proportion of which was lost are described in the Table means that there was a direct factual basis for the trial judge to take as relevant the particular injuries in the Table which he did. Insofar as the appellant complains that the trial judge was wrong on the facts about the s66 injuries, the position is that the evidence accepted by the trial judge and adopted by him in making the various awards was in a report by a medical panel dated 18 April 1991 tendered in the worker's case This report was made under s132 of the Act Such a report does not have the partially conclusive effect of the certificate of a medical panel under s131. The Act is silent about the weight to be given to it However, it was admitted in evidence, no question is raised in this court about its admissibility and it was open to the trial judge to place such weight on it as he thought appropriate in light of all the circumstances before him. It was submitted in this court that the trial judge was wrong in not accepting UWFEGAL PAINTS PTY LTD v WASSON; REGAL PAINTS Pty Ltd v VELLA (Priestley JAB contrary evidence tendered by the employer There do not seem to me to be any grounds for saying the judge made any mistake in doing what he did. The report by Drs Sturrock and Goulston was before him, and I can see no misunderstanding of fact or principle involved in the way he used that report after seeing and hearing the worker give evidence before him. In my opinion the appeal against the awards under s66 and s68 cannot succeed. The next point taken concerned the amount awarded under s67. That section entitled a worker who has suffered a loss mentioned in the Table to receive "by way of compensation for pain and suffering resulting from the loss or all those losses in addition to any other compensation... an amount not exceeding" the amount in force at the date of injury. S67(3) provides that the maximum amount of compensation under the section is payable only in a most extreme case. The maximum amount under the section on 30 March 1989 was $42,600. On 1 April 1989 it became $43,700 which was the amount awarded by Judge Gibson. (This is a slip which should be corrected in the court below under the slip rule.) It is evident that Judge Gibson thought the facts fell into the category of "a most extreme case". However, it was submitted that the appropriate assessment would have been 30% of a most extreme case. The argument accepted that s67(3) was not speaking of the unique worst case but of a category of cases within which there could be variations from case to case but in which all cases could reasonably be regarded as falling within the most extreme category. It was then pointed out that if what happened to Mr Wasson, who was forty-one at the date of the accident, had happened to a twenty year old person doing the same job and had had exactly the same physical effect on him, the consequential pain and suffering of the twenty year old would have to be of a different order from that of the forty-one year old if for no other reason than the much longer period during which, on the probabilities, the younger worker would be affected by the pain and suffering I do not think it is possible to reason, in compensation claims under s67, in the general fashion in which the submission is put. It seems to me that the injuries which happened in the present case could well affect different workers differently; subsequent pain and suffering would differ from case to case. Some workers might well fall into the category of a most extreme case and others might not The submission for the appellant may be factually accurate in some cases, in that it may well be that the younger the worker at the time of injury the greater the chance that worker will get into the most extreme case category in comparison with an older worker; but each case has to be looked at on its own merits. In the present case bearing in mind the evidence before the trial judge I would not interfere with his assessment. That is something the court would only do if it were shown that the trial judge had made some error of fact or principle going to the amount awarded showing that he had exceeded appropriate discretionary limits. That does not appear to me to have happened in the present case. The final point taken by the employer was that there is no difference between compensation payable under the Act and damages for non economic loss and that accordingly the court should have adopted the approach laid down by the High Court in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 576. (This was the only submission concerning interest made in this case.) 4 UNREPORTED JUDGMENTS I do not agree with this submission Central to the reasoning in Gogic was the concept that damages were awarded at trial on the basis of the value of money at that date Under s67 the amount to be awarded is fixed at the date of injury. The situation is thus fundamentally different from that which Gogic dealt with. This ground of appeal therefore also fails. In my opinion the appeal should be dismissed with costs. Mr Vella's case Mr Vella suffered injuries similar to Mr Wasson in the same accident. The principal injuries were to his left arm. He also applied for compensation under the Workers Compensation Act 1987 and his case was heard by his Honour Judge Gibson on the same day as Mr Wasson's Judgment in his case also was delivered on 30 March 1992, as follows: "This matter involves an assessment of the amounts to which the applicant is entitled under s66 and s67 Weekly payments of compensation and medical and hospital expenses have been paid by the insurer. The Medical Panel assessed, pursuant to s66, that the applicant had lost use of 15% of his left arm at or above his elbow and 20% loss below the elbow He is therefore entitled to an award for $9,585 and $11,928 respectively I also award interest on those sums at the rate of 12% from 30 March, 1989 to date. As to the entitlement under s67 and having read the transcript of counsels' submissions on this aspect, I feel that the appropriate amount is $15,000 I make an award in his favour for that amount, together with interest at 12% on $10,000 from 30th March 1989 to date." His Honour also made a costs order in the worker's favour, and later, an additional order for compensation for severe bodily disfigurement. Mr Vella was about twenty-seven at the time of the accident. A report was made by a medical panel in his case also under s132 of the Act. Although it was never formally tendered in evidence it was before the trial judge and he acted on the evidence it contained. There was no complaint about this at the hearing and the result is that, for the purposes of the appeal, the evidence was as much before the trial court as if formally tendered. It was not contended that Judge Gibson made any mistake about what it contained. The same matters were argued in this case as in Mr Wasson's case. Nothing arises in the case requiring different considerations to be applied to it I come to the same conclusion on each point raised, upon the same reasoning. In my opinion the appeal should be dismissed with costs. Cripps JA I agree with Priestley JA. WASSON'S CASE: Appeal dismissed with costs. VELLA'S CASE: Appeal dismissed with costs. Counsel for the Appellant: JL SHARPE Instructed by: MORAY and AGNEW Counsel for the Respondent: C HOEBEN Instructed by: ASTRIDGE and MURRAY