OWSTEN NOMINEES (NO 2) PTY LTD v GARDNER (ON BEHALF OF BETTY ANNETTE GARDNER) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and MEAGHER JJA 4 September 1995, 4 September 1995 [1995] NSWCA 345 WORKERS COMPENSATION ACT 1926 — APPEAL — CONSTRUCTION WORKERS OF s16 — "EFFICIENT LOSS OF USE" Priestley JA Mr Justice Clarke will give his reasons first. Clarke JA In this appeal the Court has been concerned, hopefully for the last occasion, with the proper interpretation of s16 of the Workers Compensation Act 1926. In that section it is subs(1), subs(4) and the table, which are of direct relevance. Subs(1) provides that a worker - "who has received an injury mentioned in the first column of the table hereunder set forth shall be entitled to receive... the amount indicated in respect of that injury in the second column of that table". The table itself sets out a number of losses, such as the loss of either arm, and in subs(4) it is provided that "for the purpose of the table the expression 'loss of' includes 'permanent loss of the use of". Betty Annette Gardner, on whose behalf the claim was brought in the Compensation Court, received tragic injuries on 28 August 1986, in circumstances which entitled her to compensation under the 1926 Act. The precise nature of the injury has not been discussed in depth but has been summed up in the description of senior counsel for the appellant as "Irreparable damage to the cortex of her brain which deprived her of all Bodily functions, without life supporting treatment, except the ability to respirate". She was paid, voluntarily, weekly payments of compensation and I assume her hospital expenses were paid. She brought a claim in 1992 seeking compensation under s16 in respect, inter alia, of the loss of speech, the loss of hearing and the loss of efficient use of all four limbs. Her claim was upheld by Judge Moran on 9 December 1993, when he made an award in her favour in respect of all those and other losses. Mr Hall, senior counsel for the appellant, has submitted that his Honour erred in doing so. He does not assert that his Honour made any errors of fact, but he contends that on the proven facts, that is that Mrs Gardner's disabilities resulted from the brain injury, it was not open to his Honour to have made awards under s16. I should mention here that brain damage was not an item appearing in the table in that section of which it reads "nature of injury". There are, as I see it, some interpretative difficulties with s16 insofar as it provides that compensation may be awarded to a worker who has received an injury mentioned in that table, when what are mentioned in the table are in some instances inappropriately regarded as injuries, particularly when the table is read with subs(4). 2 UNREPORTED JUDGMENTS A rational reading of s16(1) would, I believe, start in this way: A worker who has received an injury which has resulted in a loss mentioned in the table. However, I have not formed a concluded view on the question whether that is a proper construction of the section for two reasons: first, it has not been accepted by the appellant, and secondly we have not heard argument from the respondent on the question of construction. Perhaps a more important reason is that it is unnecessary to finally conclude the question in order to resolve this case. What the appellant submits is that it is necessary to categorise the precise nature of the loss and if the loss as categorised is not found in the table then compensation under s16 is not available. Translated to the present case the proper categorisation of Mrs Gardner's loss is brain damage. That loss is not mentioned in the table and she is, therefore, not entitled to loss under s16. That result follows from the absence of the reference to brain damage in s16. The submission presents to me as a startling one, particularly as it is conceded that Mrs Gardner lost, as a result of the accident in 1986, the complete efficient use of all four limbs and the loss of speech and hearing. However, the fundamental premise of the argument is that it is not enough that applicants show that they have lost the efficient use of their limbs, for instance, but they must go further and show that, properly categorised, their loss is one which involved the limb in question. In other words in order successfully to lodge a claim under s16 an applicant is bound to establish not only that he or she has lost the use of an arm but that that loss resulted from an injury to the arm itself, rather than to another part of the body. The argument would, of course, exclude possible claims by a quadriplegic who had suffered the severance of the spinal cord as well as persons who have suffered tragic losses as a result of brain damage. Mr Hall has referred the court to a judgment of this court, and particularly the leading judgment of McHugh JA in Department of Public Works v Morrow (1986) 5 NSWLR 166, and he relies on a particular passage in that judgment in support of his argument. I will go immediately to that passage. It reads: "But I think that the difficulties of applying s16 in a case such as the present are to be met by insisting on precise characterisation of the loss in question. Is the reduced use properly characterised as the loss of the efficient use of a limb? Or is the reduced use merely the consequence of another disability?" Mr Hall submits that clearly in this case the reduced use, properly characterised, is suffered merely as the consequence of another disability and, accordingly, there can be no claim. In my opinion this interpretation of what his Honour said is erroneous and results from a narrow focus on the words used, taken out of the context in which they were used. What had preceded what McHugh JA said was as follows: "He (the appellant employer's counsel) argued that the efficient usefulness of the limb was to be determined by consideration of it as an anatomical unit and without considering its use in the light of the worker's general spinal condition. He argued that if a worker was no longer able to make full use of a limb because of a work induced heart condition the case could hardly be supposed to be covered by s16". Having made that statement his Honour went on to express himself in the terms to which I have already referred and then continued: \RVSTEN NOMINEES (NO 2) PTY LTD v GARDNER (ON BEHALF OF BETTY ANNETTS: GARDNER) (Clarke JA) "A person who no longer runs as fast or lifts as much as he did because of the fear of a heart attack would not ordinarily be regarded as having lost the efficient use of his arms or legs." What his Honour was, I think, at pains to point out was that if, as a result of a disability suffered in a particular part of the body a worker decided not to, for instance, run or walk or to use his arms to the same extent he had used them before, then the loss of use, if that be an accurate phrase, was not a loss under s16. But his Honour was clearly distinguishing that circumstance from another one in which a worker lost the use of a limb because of an injury in another part of the body, or pain suffered in another part of the body. I have added the latter words because the context in which his Honour was considering the problems in Morrow was one in which the worker complained that he had lost the efficient use of his arm because, in using it, he suffered pain in the neck. In that context his Honour was emphasising that it does not matter whether or not it is pain in the arm which leads to the loss of efficient use, but whether, in a common sense way, a worker could be shown to have suffered a loss of the efficient use of the limb, whether that loss occurred because the use of the limb produced pain in it or in some other part of the body. There is one other passage to which I wish to refer before proceeding to another area of the judgment which I am of opinion concludes the case against the appellant. Following the words I have recorded McHugh JA went on to say: "On the other hand, where the reduced use of a limb is directly caused by pain in another part of the body, it is natural enough to consider the reduced use as constituting a loss of the efficient use of the limb. From the point of view of the worker, for practical purposes, he has lost the use of the limb. It can hardly matter that the pain that prevents the use of a limb was located in the back instead of the limb. S16(5) is concerned with the efficient use and not with the physiological impairment." For my part I would have thought that his Honour there makes plain that his line of reasoning pointed in exactly the opposite direction to that contended by the appellant. In the later passage which, to my mind, finally concludes the matter against the appellant, McHugh JA went on to say: "The precise source of the condition which gave rise to reduced or total loss of the use of the limb would hardly seem relevant to the... Object of the section. It is difficult to conceive of a reason under the original s16 for distinguishing between the worker who could not use his arm because of neck pain and the worker who could not use his arm because of arm pain. In both cases he would have lost the efficient use of his arm and become incapacitated for work". That case binds the court insofar as it has not been sought to suggest it is wrong. What is more, whether or not it does bind the court, I agree entirely with it. In my opinion the enquiry under s16 is whether the applicant has, for instance, the efficient loss of use of an arm as the result of the work injury, and if the worker establishes that he or she has, then compensation follows. In this case there can be no doubt that Mrs Gardner lost the use of all her limbs as well as the capacity to speak and to hear, and it does not matter, in my view, whether she lost it as a consequence of brain injury. The critical issue is whether she lost the relevant capacity as a consequence of the work injury. In my opinion the appeal should be dismissed with costs. 4 UNREPORTED JUDGMENTS Priestley JA. In the Department of Public Works v Morrow I took the same view of the construction of s16(5) of the 1926 Workers Compensation Act as did McHugh JA. In this case I take the same view of the construction of what McHugh JA said in Morrow as does Clarke JA. It seems to me to follow inevitably from that construction that the appeal in this case must be dismissed with costs. Meagher JA I agree with Clarke JA. Priestley JA: The order of the court is that the appeal is dismissed with costs. COUNSEL: Appellant: P HALL QC AND G PARKER Respondent: C O'?CONNOR QC AND T WILLIS SOLICITORS: Appellant: LAMROCKS, Penrith Respondent: McCULLOCH AND BUGGY