CARTER CORPORATION PTY LTD v MEDWAY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, CLARKE and MEAGHER JJA 12 July 1995, 12 July 1995 [1995] NSWCA 70 WORKERS COMPENSATION ACT 1987 APPEAL — s67 — AWARD EXCESSIVE COMPARED TO PROVEN LOSS — ASSESSMENT SET ASIDE — APPEAL ALLOWED — REASSESSMENT MADE Clarke JA The respondent, who was born on 28 March 1926, was injured whilst working in his employment as a driver on the 2 April 1991. In his evidence in chief he said that whilst loading cattle on a cattle truck he slipped on the floor of the vehicle and injured his left knee. The knee became numb and swollen and was placed in a cast for six weeks. According to Dr Downes, an orthopaedic surgeon qualified by the appellant, the injury was a fracture of the patella which was quite a nasty fracture. There was also a direct contusion to an arthritic femoropatellar joint and the doctor thought that probably he wrenched a quite arthritic left knee. I should interpose the observation that, although there was radiological evidence of arthritis, the evidence which was accepted was that he was asymptomatic prior to the injury. The respondent was taken to Goulburn Hospital and at that stage his knee was very numb and was stiff and swollen. After the cast was removed his knee was naturally stiff and not working well but, on doctor's advice, the respondent exercised it. Also in accordance with that advice the respondent returned to work to test out the knee. In that work he was driving a 500 horsepower truck with a manual clutch which required a lot of pressure on the clutch. He found that in doing the work his knee got very sore and that by the time that he got home after a journey it was completely numb. Eventually he found that he was unable to continue driving. He was asked how his knee had been since the accident and he said: "Tt gets very sore from, you know, even sitting down for a long period. The main exercise I have is walking but like riding in a motor vehicle for a long time it becomes sore and when I get up I have quite a problem getting it to work properly". He continued to have problems when he was seated for any length of time, for instance, while he was watching television. He also had problems in doing his gardening and I think it is true to say that, in accordance with his evidence, his knee ached a lot and continuously gave him problems. In cross examination he said that he had been advised to walk as therapeutic treatment and he did that every day, walking about four kilometres. The respondent brought a claim in the Compensation Court which was heard by Judge Maguire who, on the 19 November 1993 made awards in favour of the respondent. The first award related to s66 and his Honour compensated the respondent on the basis of a 20% loss of the use of the left leg at or above the knee and, under s67, his Honour assessed the compensation on the basis of 60% of a most extreme case. The appellant has not challenged the award under s66 but 2 UNREPORTED JUDGMENTS has appealed against the award under s67 and has submitted that the award was out of all proportion to the proven loss and resulted from a number of errors made by his Honour. S67 provides that a worker may claim compensation for pain and suffering resulting from a proven loss mentioned in the table to the Division and that the maximum compensation is as stipulated in the section from time to time. In order to secure an award under s67 a worker needs to establish that the compensation payable under s66 is not less than 10% of the relevant maximum amount. S67(3) is relevant to the determination of the present case and it reads: "The maximum amount of compensation under this section was payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses." S67(7) is also relevant in so far as it provides the definition of "pain and suffering" where used in the section. The definition reads: "Tn this section 'pain and suffering' means: (a) actual pain, or (b) distress or anxiety suffered or likely to be suffered by the injured worker whether resulting from the loss concerned or from any necessary treatment." That subsection has received attention from this Court in Alvorac General Engineering Pty Ltd v Arlotta (1993) 29 NSWLR 734. It is, I think, true to say that it was there pointed out that the definition limits the concept of pain and suffering in a manner which differentiates it from those aspects of pain and suffering to which attention is directed in the assessment of general damages at Common Law. The particular question of interpretation was dealt with by Mahoney JA at 735 and 736 and I would adopt what his Honour there said as a correct construction of the subsection and as indicating the extent of the limitation. His Honour in his judgment observed at the outset that it would be easy to say that this man in his middle sixties had suffered only a knee injury but on reflection the effect of that injury upon this man suggested it was a very serious injury indeed. His Honour then went on to quote what Dr Downes had said in another section of his report and to refer to some of the evidence which the respondent had given. I should interpose at this stage that it is clear that his Honour thought that the respondent was a stoic person and was not of the complaining type. That is more than borne out by the written material in the appeal book and Mr Hoeben, who appeared for the appellant, accepts that full value has to be given to everything that the respondent says in so far as he has, if anything, understated his problems. Returning to his Honour's judgment, he observed that the respondent would have trouble for the waking hours of every day for the rest of his life. He pointed out that the respondent would be reminded in a most uncomfortable and unpleasant way on each day of the fall he suffered. There is a complaint made about that finding to the extent that the respondent himself gave no evidence which would indicate that he was reminded in that way but I do not think it necessary to pass upon that complaint in view of the conclusion which I have reached in the case. His Honour then went on to pay regard to the frustration and disappointment which must have been suffered by the respondent as a consequence of having to give up a career which he obviously enjoyed. This, according to Mr Hoeben, URJ CARTER CORPORATION PTY LTD v MEDWAY (Clarke JA) 3 reflected an erroneous approach by his Honour in so far as such frustration fell outside the statutory meaning of "pain and suffering" which is to be applied to s67. My tentative view is that Mr Hoeben is correct in that submission but it is unnecessary to reach a conclusion upon it in the light of the view I have otherwise formed. Mr Hoeben's substantial complaints are that an award of 60% of a most extreme case patently reveals a lack of reasonable proportionality and a failure to have regard to the duration over which the respondent will suffer pain. In this respect Mr Hoeben reminds the court that the respondent is aged in his mid 60's and the duration of the suffering will be much less than that of a young person. In my opinion, leaving aside altogether the disparity between the award under s66 and the award under s67 for the reason that there is no necessary correlation between them the award which is challenged is out of all reasonable proportion to the injury. It must be borne in mind that a most extreme case is not the most extreme case of a leg injury but a most extreme case contemplated under the Act. In my opinion the pain and suffering which the respondent has suffered, and will suffer for the rest of his life, cannot possibly constitute, according to reasonable proportionality, 60% of such a case. In those circumstances, and putting to one side the specific errors to which Mr Hoeben alluded, I have reached a conclusion that the award cannot stand. The question then arises whether the Court should reassess or whether the case is appropriate for a redetermination by the Compensation Court. Because of the subjective elements involved in an award under s67 it will not always be appropriate for this Court to reassess. However, there are special features in this case. First, both parties have asked the Court to reassess and, secondly, and more importantly, there are no credit questions involved. The respondent's evidence is to be accepted to the full, as is the evidence of the doctors which supports his case. That is not only my view but has been conceded by counsel for the appellant. Upon that basis there is no reason to believe that this Court is relevantly disadvantaged and not in a position to make its own assessment. Having regard to the evidentiary material to which I have shortly referred, giving full weight to the respondent's complaints and having regard to his stoicism, I have reached a conclusion that an appropriate percentage is 30% of a most extreme case. Upon one view that may even be thought to be too high but Ihave, upon reflection, decided it is necessary to go that far in order properly to accommodate my assessment of what the respondent actually suffered and is likely to suffer in the future. I would add that Mr Hoeben also sought a discount, in a sense, upon the ground that the respondent had an arthritic knee and he argued, in line with the principles articulated in Wilks v State Rail Authority of NSW (NSW Court of Appeal, 2 February 1995, unreported), that it was necessary to disregard the effects of that condition. In my opinion the respondent is entitled to be compensated, and only compensated, for the consequences of the loss which he suffered as a result of the work injury but, insofar as he was asymptomatic prior to that injury, I see no reason to treat part of his disability as flowing from something other than the consequence of the accident itself. His Honour ascribed approximately 33 and one third percent of the amount he awarded to past pain and suffering and the balance to the future. There has been no attack on that apportionment and, in the absence of submissions urging a different approach, I would adopt his Honour's finding and ascribe one third of 4 UNREPORTED JUDGMENTS the amount which I would award to the past and obviously that amount will carry interest. I will, however, leave it to the parties to calculate the amount which flowed from my reasoning and the interest which should be added to the sum which is thus reached. For these reasons I would allow the appeal and substitute an award the amount of which will be advised by the parties for the amount awarded by his Honour. The respondent should pay the appellant's costs and should have a certificate under the Suitors Fund Act. Mahoney AP I agree. The assessment of damages for pain and suffering in other contexts, and no doubt in this context, is very much a matter for the trial Judge. In accordance with the principles which have elsewhere been stated, I would not readily interfere with a Judge's assessment on such a matter. I am conscious of what has been said in cases such as Moan v Mcmahons (1985) 3 NSWLR 700 and the cases there referred to. However, in the present case, I have come to the conclusion that his Honour's assessment was beyond that open to a sound discretionary judgment. Tam influenced in coming to that conclusion by the matter to which Clarke JA has referred, namely, the likelihood that the Judge took into account as pain and suffering matters going beyond what is permitted under s67. S67 limits pain and suffering to "Actual pain" and "distress or anxiety" in the terms referred to in s67(7). The trial Judge said that when one comes to look at the question of suffering it was, in his view, important to note this injury put an end the worker's career. His Honour referred to that at some length. I feel little doubt that the Judge took that into account in arriving at his assessment of 60%. It may be that this explains the basis on which the Judge came to the assessment of 60% of a most extreme case. There was no evidence to establish that the worker suffered substantial distress or anxiety of the kind referred to in s67(7). Because of that, the Judge, in my opinion, inadvertently went beyond what the evidence warranted. On that ground I think it proper to set aside the assessment. In upholding the appeal I do not undervalue the effect which pain may have upon a person, nor the importance of it for present purposes. The significance of what the applicant said in his evidence must not be underrated. But the Court, on an appeal such as this, must take the evidence as it is recorded and, doing that, I feel that the award which has been made is beyond that which was open to the trial Judge. I agree with the orders proposed by Clarke JA. Meagher JA I agree with Clarke JA. Mahoney AP: The order of the Court, therefore, is that the appeal will be allowed the awards will be set aside, the actual awards which the Court will make as on a rehearing are those to which Clarke JA has referred. Counsel for the Appellant: CRR HOEBEN Instructed by: DEXTER HEALEY AND CO Counsel for the Respondent: AF PUCKERIDGE QC Instructed by: GALLAND ELDER LULHAM, GOULBURN