TURNBULL v NATIONAL TEXTILES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER, HANDLEY JJA 10-11 October 1994, 11 October 1994 [1994] NSWCA 324 DAMAGES — quantum — work-related injury — non-economic loss assessed at 45 per cent of a most extreme case — whether inadequate — held: it was not — no question of principle. DAMAGES — quantum — future economic capacity — whether award inadequate — held: it was — no question of principle. WORKERS' COMPENSATION — appellant assessed at 45% of "the most extreme case'"' — s151G(3) refers to "'a most extreme case" — whether Master erred — held: he did not — it was merely an error of expression on his part. Workers'Compensation Act 1987, s66, s149, s151G. ORDERS (1) Appeal allowed with costs. (2) Set aside the Master's assessment and substiture in lieu thereof an award which will be $97,590.20 greater than that made by the Master. I think that means that I would substitute an award for $228,590.25. (3) The respondent should pay the costs of the appeal and, if qualified, should have a certificate under the Suitors Fund Act. (4) The substituted judgment should take effect from 16 July 1993. Handley JA This is an appeal by a plaintiff from an assessment by Master Greenwood of the damages to which he is entitled as a result of suffering an injury at work on 9 September 1987. The Master awarded the plaintiff a total of $252,889. The plaintiff has appealed alleging error in the assessment of his non-economic loss and his future economic loss. Since the accident occurred on 9 September 1987, the plaintiff s damages fall to be assessed in accordance with the retrospective provisions of the Workers Compensation Act 1987 inserted by subsequent amendments. The plaintiff suffered a serious degloving injury to his right hand when it became trapped in textile machinery. The Master assessed the plaintiff's non-economic loss on the basis of 45 per cent of a most serious case in accordance with s151G of the Act. The plaintiff submits that the Master erred in law in reaching this assessment and that, in any event, the assessment is grossly inadequate and that the Master should have allowed a much higher proportion of the maximum award. $151G(2) provides that: "The amount of damages to be awarded for non-economic loss is to be a portion determined according to the severity of the non-economic loss of the maximum amount which may be awarded." At the relevant time the maximum amount was $180,000. S151G(3) provides that the maximum amount may be awarded only in "a most extreme case". The Master said: 2 UNREPORTED JUDGMENTS "T assess, taking all the factors I have mentioned into account, the plaintiff s damages at 45 per cent of the most extreme case". (emphasis supplied) The reference to "the most extreme case" was erroneous having regard to the terms of s151G(3) and the decisions of this Court on the corresponding provisions of Motor Accidents Act. However, I have not been persuaded that the Master made anything other than an error of expression in this part of his reasons. The case law is clear, the text of the section is clear and, in my view, the court should conclude that the experienced and competent counsel who represented the parties before the Master would have drawn his attention to the relevant test. I would, therefore, not interfere with this award simply because of what I regard as a misstatement in the Master's reasons for judgment. The appellant also contends that an assessment at 45 per cent was wholly erroneous and outside the range of a sound discretionary judgment. Mr Poulos QC referred us to the plaintiff's injuries, and reminded us that he was right hand dominant and only 27 at the date of injury and 35 at the date of trial. The plaintiff s claim for lump sum compensation under s66 of the Workers Compensation Act had earlier been compromised on the basis of a 95 per cent loss of the efficient use of his right hand and this was properly before the Master. The submission for the appellant was that this was "a most extreme case" within s151G(3) so that an award of 80 per cent or more was called for. The award must be proportionate to "a most extreme case" and one must bear in mind the components of non-economic loss as defined in s149. The award must, within the statutory limits compensate the plaintiff for the loss of the efficient use of his right hand, and the associated pain and disfigurement. It is necessary to bear in mind that the rest of his body is undamaged. He is mobile, has normal use of his left hand, his back is intact, he has not suffered any brain damage, and there has been no diminution in his expectation of life. When all these matters are taken into account, I am not persuaded that the award was outside the range of a sound discretionary judgment. I would, therefore, reject the first part of the appellant's appeal. I now turn to the award for future economic loss. The Master assessed this at $104,000 on the basis that the plaintiff was losing, at the date of trial, $150 a week. This assessment was based upon his pre-injury earnings of $364 a week as an unskilled process worker in the textile mill operated by his employer. The Master made a number of findings in relation to the plaintiff based upon his pre-accident work experience, the number of his jobs, and his propensity for becoming bored with jobs and changing his employment and his place of employment. It seems to me that the appellant's attack on these subsidiary findings cannot be sustained in the light of the established principles governing this court's entitlement to interfere with credibility based findings of fact. Nevertheless, I have been persuaded that the Master's assessment of the plaintiff s future economic loss was seriously inadequate. He said of the plaintiff:- "Insofar as obtaining employment is concerned, he can be assessed as a one armed manual worker suffering from depression." The plaintiff was and still is living at East Maitland in the Hunter Valley, which the court may be permitted to know is an area with significant local unemployment. The plaintiff, as the Master assessed him in the passage above, would obviously have enormous difficulties in obtaining employment anywhere URJ TURNBULL v NATIONAL TEXTILES PTY LTD (Priestley JA) 3 let alone in and near his home town. Yet the Master treated him as having a residual earning capacity of $210 a week and as having lost only 40 per cent of his pre-injury capacity. It seems to me that that assessment cannot be supported in the light of the Master's own assessment of the man. I would, therefore, set aside the assessment for future economic loss and re-assess. In my view I would be doing no injustice to the defendant if I treated the plaintiff as having lost 80 per cent of his pre-injury capacity so as to be left with no more than 20 per cent of such capacity. In those circumstances I would propose that the following orders be made: (1) Appeal allowed with costs. (2) Set aside the Master's assessment and substitute in lieu thereof an award which will be $97,590.20 greater than that made by the Master. I think that means that I would substitute an award for $228,590.25. (3) The respondent should pay the costs of the appeal and, if qualified, should have a certificate under the Suitors Fund Act. (4) The substituted judgment should take effect from 16 July 1993. Meagher JA I agree with my brother Handley JA. Priestley JA I agree with the result at which Handley JA has arrived althoughmy reasons are slightly different so I will mention them very briefly. I would have determined the severity of the non-economic loss at a higher proportion than the Master did. That proportion has not been changed by the majority. I would however, have increased the figure for future economic loss arrived at below by a somewhat smaller amount than the majority have done. I arrive at this latter opinion because it seems to me that, notwithstanding the very severe impairment of his capacity for work sustained by the appellant, the evidence gives a fairly clear impression of a man who rather stoically has made determined efforts to do more than his physical condition would ordinarily permit and who has to a large extent been successful in doing more at the cost of considerable pain and awkwardness to himself than you would expect a person to be able to do suffering from the disability that has been inflicted on him. Since I am in a minority and since the two matters of difference would lead me, nevertheless, to a result very much the same as that of the majority, I see no point in elaborating my reasons any further. I agree with the orders proposed by Handley JA. ORDERS (1) Appeal allowed with costs. (2) Set aside the Master's assessment and substiture in lieu thereof an award which will be $97,590.20 greater than that made by the Master. I think that means that I would substitute an award for $228,590.25. (3) The respondent should pay the costs of the appeal and, if qualified, should have a certificate under the Suitors Fund Act. (4) The substituted judgment should take effect from 16 July 1993. Counsel for the appellant: J Poulos QC/J Curran Solicitors for the appellant: Declan James Curran and Co Counsel for the respondent: J E Maconachie QC/W Kingsford-Dodd Newcastle 4 UNREPORTED JUDGMENTS Solicitors for the respondent: Abbott Tout