PATRICK SANDERSON STEVEDORING PTY LIMITED v MATE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirsy ACJ, MAHONEY AP and CLARKE JA 11 July, 25 August 1995 [1995] NSWCA 362 WORKERS COMPENSATION — injury — multiple injuries — apportionment — apportionment of weekly compensation not available — proper adjustment of claims under ss6 and 67 Workers Compensation Act 1987 — whether subjective elements in s67 compensation could be reassessed by the Court of Appeal to achieve finality — held: (Clarke JA; Kirby ACJ and Mahoney AP concurring) (1) The awards made by the primary judge (Maguire CCJ) apportioning weekly compensation must be set aside as contrary to authority. Insurers Guarantee Fund — NEM General Insurance Association Ltd (in Liq) v GIO General Limited (1994) 33 NSWLR 247 (CA) applied; Morris v George & Ors [1977] 2 NSWLR 552 (CA) referred to; (2) The Court of Appeal could not assess compensation for pain and suffering under s67 of the Act because of the subjective elements involved; (3) Award (a) amended in respect of interest and s66 amounts and (b) set aside in respect of s67 amounts. Workers Compensation Act 1987, ss22, 66, 67, Schedule 6, cl 2(1), Schedule 6 Pt 6 cl 6(1). Kirby ACJ. I agree with Clarke JA. Mahoney JA. I agree with the judgment of Clarke JA. Clarke JA. The first respondent, Graeme Ian Mate, sought compensation under the Workers Compensation Act 1987 from five of the employers for whom he worked between 1980 and November 1990. His claim was heard in Newcastle by Judge Maguire on 15 March 1994. His Honour delivered a reserved judgment on 1 July 1994 awarding the first respondent weekly compensation on the basis of total incapacity for work from 7 November 1991 to the date of judgment and continuing. He also awarded the first respondent compensation under s 66 in respect of a 25 per cent impairment of his back and 10 per cent loss of efficient use of his left leg at or above the knee and compensation under s 67 in the sum of $15,000. The judge apportioned liability for each of these awards as to 70 per cent against the appellant, Patrick Sanderson Stevedoring Pty Limited, and 30 per cent against the second respondent, Wayne Badge t/as Waynes Bobcat and Tipper Hire. The appellant filed a notice of appeal on 25 July 1994 challenging the trial judge's apportionment of liability in respect of each of the awards. For reasons which it is unnecessary to relate in this judgment the second respondent concededthat the trial judge had erred in apportioning liability in respect of the awards and consented to this court upholding the appeal and setting aside those orders relating to apportionment. The second respondent did, however, seek to argue that a consequence of the upholding of the appeal was that the first respondent's award under s 67 should be reduced to $4,500. In every sense the appeal shifted ground and became a contest between the first and second respondents. Because the trial judge found in favour of three of the employers 2 UNREPORTED JUDGMENTS they did not appear on the hearing of the appeal and it is unnecessary to refer again to them. I will now expand upon that brief introduction. On 6 July 1980 the first respondent, while working for the appellant, sustained the first relevant back injury which led to incapacity. During the ensuing ten years he changed his employment a number of times and suffered several recurrences of pain in his back. On 13 November 1990 he noticed that the pain in his back, which by now had spread to his leg, was getting worse (the case has been dealt with on the basis that he received an injury on that date). He went off work and has not worked since that time. His case was that he was incapacitated as a result of one or more of the injuries he had received between 1980 and 1990. The trial judge accepted that the first respondent was totally incapacitated for work and that his incapacity resulted from the 1980 and the 1990 injuries. He also concluded that the 1980 incident was the major cause of his incapacity and, accordingly, apportioned responsibility in the manner I have recited. In challenging the apportionment the appellant pointed out that his Honour had failed to refer to those provisions of the Workers Compensation Act 1987 ('the Act') which provided that it was the employer at the time of the latest causative injury who was responsible (or should be treated as responsible) for the first respondent's incapacity. Mr Hislop QC, senior counsel for the appellant, relied on a line of cases in this Court which established that it was only in what he described as a Morris vGeorge type of case (Morris v George is reported at [1977] 2 NSWLR 552) that an apportionment under s 22 could be carried out. He submitted that the present was not such a case and that this line of cases had established the principle that in these circumstances apportionment of a liability to make weekly payments was not open (see Insurers Guarantee Fund — NEM General Insurance Association Ltd (In Liq) v GIO General Limited (1994) 33 NSWLR 247; MLC Insurance Limited v Pinto & Anor (1994) 8 ANZ Ins Cas 75-336; Insurers Guarantee Fund — NEM General Insurance Association Ltd (In Liq) v Manufacturers Mutual Insurance, (NSW Court of Appeal, 12 August 1994, unreported); Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Associated Limited (1989) 5 ANZ Ins Cas 60-906; Manufacturers Mutual Insurance Limited v National Employers Mutual General Insurance Association Limited (1990) 6 ANZ Ins Cas 61-038 and Maritime Services Board of New South Wales v Moore (NSW Court of Appeal, 26 May 1995, unreported). In respect of the claim under s 66 Mr Hislop referred the court to the transitional provision in Schedule 6 Pt 6 cl 6(1) of the Act which expressly provides that where a loss mentioned in the relevant part of the Act resulted both from an injury received before the commencement of that part and an injury received after that commencement the loss should be treated as having resulted from the injury received after that commencement. In respect of the claim under s 67, Mr Hislop referred to cl 2(1) of the same part of Schedule 6 which provided that s 67 applied only to pain and suffering in respect of injuries received after the commencement of the relevant part of the Act. Although Mr Hoeben, counsel for the second respondent, disputed some of those claims in his written submissions, upon further reflection he accepted that they were all correct and that accordingly he should consent to the appeal being upheld. That brings me then to the argument which he sought to mount. The trialjudge apportioned $10,500 of the $15,000 awarded to the first respondent under s 67 against the appellant and the balance of $4,500 against the second URJ PATRICK SANDERSON STEVEDORING PTY LIMITED v MATE (Clarke JA) 3 respondent. It followed, according to Mr Hoeben's argument, that the amount of $10,500 awarded as compensation under s 67 all flowed from the 1980 injury and in the light of schedule 6 Pt 6 cl 2(1) should not have been awarded in favour of the first respondent. The consequence being that, in accordance with the trial judge's findings, the proper amount allowable under s 67 in respect of the second injury was $4,500. Counsel for the first respondent resisted this argument and drew the court's attention to a portion of the transcript of submissions before the trial judge in which counsel for the first respondent pointed out to his Honour that no award could be made in respect of pain and suffering which occurred prior to the 1990 injury. In his submission the court should construe his Honour's award of $15,000 compensation under s 67 as relating wholly to the period following the 1990 injury and, on this basis, it was maintainable. Unfortunately, his Honour's judgment on this aspect of the claim was terse. All he said was: That brings me to a consideration of s 67. The applicant described to me the pain that he has suffered over many years and the restrictions on his lifestyle that derive from it. The maximum amount that could be awarded for a most extreme case is $48,400. I think it appropriate to award this man the sum of $15,000. I apportion that as to $10,500 against the first respondent and $4,500 against the second respondent. Of the total of $15,000 I apportion $10,000 to the past. Although the award of interest, which related to a period of three and a half years (that is going back to the 1990 injury) would tend to indicate that his Honour did award compensation for pain and suffering only in respect of the period following the 1990 injury I do not think the court can conclude with any confidence that that was the course his Honour adopted. The position as I see it is as follows: His Honour erred in apportioning the liability for the award for pain and suffering. The error, which occurred in circumstances where it is not clear from the judgmentitself whether his Honour was awarding compensation against the appellant in respect of the pre 1990 period, taints the total sum awarded insofar as the court is not able to say that his Honour was awarding damages flowing from the relevant loss and extending only from the date of the 1990 accident. In these circumstances, as it seems to me, the award under s 67 must be set aside. The question then arises whether this Court should reassess that component of the award or whether the case should be remitted to the Compensation Court. The advantages in favour of the first course are obvious. If this Court were to reassess it would finally determine the proceedings and would eliminate the need for additional expenditure. On the other hand there are subjective elements involved in a claim for pain and suffering which place a trial judge in a particularly advantaged position. This court, not having seen the first respondent in the witness box, is not, in my opinion, able properly to assess that compensation. The unfortunate consequence is that it will be necessary to return the proceedings to the Compensation Court for it to determine the proper award under s 67. Bearing in mind the amount involved and the real possibility that his Honour was limiting his award in the manner suggested by counsel for the first respondent, it is to be hoped that the parties may be able to compromise this aspect of the case. I would propose the following orders: 1. That the following orders made by Judge Maguire be set aside: 3. That liability for payment of the above weekly compensation be apportioned as to 70% to the first respondent and as to 30% to the second respondent; JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:14:03 2008 /reports/caseml]/case/urj/9508 136 UNREPORTED JUDGMENTS 10. 11. 12. 13. That the first and second respondents each pay interest on the whole of its respective share of arrears of the weekly compensation at the rate of 4.5% per annum for a period of 3.5 years; That the first and second respondents pay the applicant as lump sum compensation under section 66 -(1) $14,512.50 in respect of 25% permanent impairment of the applicant's back. (2) $7,256.25 in respect of 10% loss of use of the applicant's left leg at or above the knee. That liability for payment of the total of the said lump sums awarded under section 66 be apportioned as to $15,238.00 to the first respondent and as to $6,530.75 to the second respondent. That the first respondent pay the applicant interest on the said sum of $15,238.75 at the rate of 9% per annum for 3.5 years. That the second respondent pay the applicant interest on the said sum of $6,530.75 at the rate of 9% per annum for 3.5 years. That the first and the second respondents pay the applicant, as lump sum compensation under section 67, $15,000 in respect of pain and suffering; $10,000.00 thereof to be apportioned in respect of past pain and suffering. That liability for payment of the said lump sum awarded under section 67 be apportioned as to $10,500 to the first respondent and as to $4,500 to the second respondent. That the first respondent pay the applicant interest on $3,500.00 of the said lump sums awarded under section 67 at the rate of 9% per annum for 3.5 years. That the second respondent pay the applicant interest on $1,500 of the said lump sum awarded under section 67 at the rate of 9% for 3.5 years. That the first respondent pay 70% and the second respondent 30% of the applicant's costs (including two qualifying fees and fee for counsel for advice on evidence) forthwith after they have been agreed or taxed.' 2. That in lieu of the above orders this Court orders: (1) That the second respondent (both in this Court and in the court below) pay interest on the arrears of the weekly compensation awarded at the rate of 4.5% per annum from 7 November 1991 to date. (2) That the second respondent pay the applicant as lump sum compensation under s 66 — (1) $14,512.50 in respect of 25% permanent impairment of the applicant's back. (2) $7,256.25 in respect of 10% loss of use of the applicant's left leg at or above the knee. (3) That the second respondent pay the applicant interest on the total of the two sums aforesaid at the rate of 9% per annum from 7 November 1991 to date. (4) That the second respondent pay the first respondent's costs of the hearing before Maguire J (including two qualifying fees and fee for counsel for advice on evidence) forthwith after they have been agreed or taxed. 3. That the second respondent pay the costs of the appellant and the first respondent of the appeal; URJ PATRICK SANDERSON STEVEDORING PTY LIMITED v MATE (Clarke JA) 5 4. That the proceedings be remitted to the Compensation Court for the determination of the proper amount to be awarded to the first respondent as compensation under s 67 of the Act. 5 Appeal upheld and the orders made as stated in Clarke JA's reasons. Counsel for the appellant: J D Hislop QC / W J Roche Solicitors for the appellant: Grahame Goldberg Partners Solicitors 10 Counsel for the first respondent: M J Perry Solicitors for the first respondent: Moroney Rutter and Mantach Solicitors Counsel for the second respondent: C R R Hoeben 15 Solicitors for the second respondent: Hunt and Hunt Solicitors