AUSTRALIAN IRON AND STEEL PTY LTD v MAUDE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and POWELL JJA 7 June 1994, 7 June 1994 [1994] NSWCA 10 WORKERS COMPENSATION ACT s66(1) and s67 — permanent impairment of back — worker entitled to fifteen per cent of the one hundred per cent amount prescribed. The respondent worker suffered a permanent impairment of his back and was awarded a lump sum under s66(1) of the Workers Compensation Act. He was also awarded a sum under s67. Held: The better construction in the present case of the formula "falls within the range of nought to sixty per cent at the level of fifteen per cent" was as meaning that the respondent worker within the range applicable to impaired backs fell at the level of the number fifteen on a scale of sixty. Hence, the respondent worker was entitled to compensation of fifteen per cent of the one hundred per cent amount prescribed under s66(1). Priestley JA This appeal raises one point which is within a very small compassbut which is rather troublesome. The point arises in regard to an award made by his Honour Judge Manser in the Compensation Court under s66 of the Workers Compensation Act 1987. In the proceedings, which were dealt with in two stages, his Honour first awarded weekly compensation and later dealt with the questions arising under s66 and s67 which flowed from the fact that he had found that the worker, the respondent in this appeal, had suffered a permanent impairment of his back from the compensible injury. What his Honour did in relation to the s66 claim was to describe in general terms the effect the injury had on the respondent's back and then to say that there was no doubt that the impairment of his back was permanent and to go on in these words: "When I compare this young man's case with the most extreme one I am satisfied that he falls within the range of nought to sixty per cent (sixty per cent being the most extreme case) at the level of fifteen per cent, that is to say he is entitled to compensation of fifteen per cent of the amount prescribed under s66(1) which at the date of his injury was the sum of $83,400. So that is $12,510. " Having arrived at that conclusion he went on to make an award under s67. An award under s67 could only be made if the compensation paid or payable under s66 was not less than ten per cent of the maximum amount from time to time referred to in s66(1). The figure of $12,510 being greater than ten per cent of the s66(1) figure, his Honour had to consider what was an appropriate figure under s67 and he awarded $20,000 under that section. The very short point involved in the case is this: in the words which I quoted a few moments ago was his Honour saying that, because in his view the impairment of the worker's back compared to a most extreme case was fifteen per cent, he was awarding the respondent worker fifteen per cent of one hundred per cent of the amount prescribed under s66(1); or was he saying by implication that because in his view the impairment was twenty five per cent compared to a most 2 UNREPORTED JUDGMENTS extreme case, he was awarding twenty five percent of sixty per cent of that maximum amount. If he was doing the former, he was in error; if the latter, he was not. This way of stating the question only makes sense by reference to some provisions of the Act which experience continually shows could have been more clearly expressed. The table to Division 3 referred to in s66 prescribes as the range for a figure for permanent impairment of back nought to sixty as a percentage of the maximum amount payable as stated in s66(1), so that the maximum percentage the respondent worker could obtain in the proceeding before his Honour, if his back fell into the worst case category, was sixty per cent of the amount referred to in s66(1). That amount changes from time to time but it is common ground that his Honour was correct in taking the figure of $83,400 as being the maximum at the relevant date. A number of cases have come before the court in which similar questions have arisen and somewhat similar forms of words to those I have quoted from this particular judgment of his Honour have been scrutinised by this court, with sometimes different results. For example in a case decided this morning, NCR v Nikolov, it was clear from certain facts found by the trial judge, again Judge Manser, that the impairment percentage of thirty per cent which he was using was intended to be a percentage of back impairment representing a percentage of the worst possible case of back impairment; that is, it was clear that in that case when he was talking about thirty per cent he meant thirty per cent of the maximum amount available in respect of an impaired back and the court took the view that once that became clear his judgment awarding the worker thirty per cent of the s66(1) amount in this respect had to be set aside. Put shortly, in terms of the way in which these cases have come to be discussed before the court, he took thirty per cent of one hundred per cent instead of thirty per cent of sixty per cent. In another case decided by the court last year, Boribo Pty Ltd v Mundy, (Court of Appeal, unreported, 2 April 1993), again an appeal from Judge Manser, he had used a somewhat different form of words from that which he used in NCR v Nikolov and also slightly different from the form of words in the present case. In Boribo the court took the view that when the judge was speaking of a fifteen per cent figure what he was doing was referring to fifteen units of incapacity out of a notional maximum of sixty such units, Boribo likewise being an impaired back case. Fifteen units out of sixty units amounted to twenty five per cent. Thus the twenty five per cent figure was held to have been correctly applied to the maximum amount available for an impaired back and the appeal in that case was dismissed. In the present case the question becomes whether it would be appropriate for the court to read what his Honour said when he used the words "falls within the range of nought to sixty per cent... at the level of fifteen per cent" as meaning, as was held in Boribo, that his Honour was saying the applicant fell within a range of nought to sixty at the level of fifteen. The answer is not clear because of the intrusion of the percentage signs after the figures "60" and "15". However, unlike the NCR case, there is no indication from his Honour's remarks when dealing with the evidence of the degree of impairment of the back whether he had in mind a fifteen or twenty five per cent figure as the relevant one in relation to a most extreme case of back impairment. The evidence was capable of supporting the higher figure, and no suggestion otherwise was made to the court. Had it been clear that he meant the percentage URJ AUSTRALIAN IRON AND STEEL PTY LTD v MAUDE (Powell JA) 3 impairment of the back compared to a most extreme case was fifteen, then the same result would have followed as in the NCR case. However, in the absence of any direct indication of the figure his Honour was acting on it seems to me, bearing in mind the way the court construed similar words used by Judge Manser in Boribo, that it is more satisfactory in the present case to treat the formula "falls within the range of nought to sixty per cent at the level of fifteen per cent" as meaning that the respondent worker within the range applicable to impaired backs fell at the level of the number fifteen when the top of the scale was sixty. That is to say, his Honour was saying in a somewhat roundabout way that as compared to a most extreme case the impairment of the respondent worker's back was twenty five per cent. On that footing his Honour was then correct to say that the respondent worker was entitled to compensation of fifteen per cent of the one hundred per cent amount prescribed under s66(1). The case was argued before us on the footing that the question I have dealt with was the sole question for decision in the case. The parties were agreed on the various figures, including what was the appropriate s66(1) sum at the relevant date. Once the formula used by his Honour is construed in the way that I have tried to explain, then the principal point of the appeal fails and so far as I understand the argument before us, there is nothing further for us to consider. For these reasons I think the appeal should be dismissed with costs. Mahoney JA I agree with what has been said by Priestley JA. As was said in thecase decided this morning, NCR (Australia) Pty Ltd v Nikolov, it is of assistance to remember that in approaching cases of this kind the court must consider the three questions there specified. The first is what did the judge do; the second is was what he did consistent with the evidence; and the third is, as a result of what he did what is the amount of compensation payable under s66. As Priestley JA has pointed out, a number of cases in recent times including the NCR case this morning have turned upon the form of the judgment given by the trial judge. Every trial judge will of course desire in the exercise of his professional skill to write a judgment which will leave no doubt as to what in relevant respects he means to say. To expect this to be achieved in every case is of course to expect perfection. But in the end the decision of the appeal will often turn, as several cases before this court have turned, upon the interpretation which must be given to the terms of the judge's judgment. No doubt, with a view to preventing further appeals and preventing further difficulties in the interpretation of them, the judges of the Compensating Court will have regard to this in the formulation of their judgments. In the present case I agree with what has been said by Priestley JA, namely that what was intended is clear enough from the terms of the judge's judgment. I agree with what has been proposed. Powell JA In common with Priestley JA I have found the resolution of the present case less than easy, the principal causes fo the difficulties which I have found are not difficult to discern. They are to be found in what appears to be the verbal formula which his Honour Judge Manser appears commonly to use in dealing with claims for compensation pursuant to the provisions of s66 of the Workers Compensation Act 1987. That formula, if I may say so, is one which in a particular case is apt to lead a judge into error. In the present case, in contrast to the decision which we gave earlier today in NCR (Australia) Pty Ltd v Nikolov, there is lacking the feature that indicated that his Honour clearly had 4 UNREPORTED JUDGMENTS fallen into error. With some reluctance I think in the present case I feel bound to say that, infelicitous though his Honour's language was, he sufficiently indicated that what he was seeking to say was that the degree of incapacity was one quarter of a worst case scenario of a bad back. In that event the ultimate figure was, as he found correct and that being so I likewise agree that the appeal should be dismissed with costs. MAHONEY JA: Therefore the appeal is dismissed with costs. Counsel for the Appellant: AL MITCHELL Instructed by: BLAKE DAWSON WALDRON Counsel for the Respondent: J INGRAM Instructed by: MAURICE MAY AND CO