COLES MYER LTD (TRADING AS K-MART) v HELLEGERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CLARKE JJA 16 June 1995, 16 June 1995 [1995] NSWCA 84 WORKERS COMPENSATION ACT — APPEAL FROM LUMP SUM AWARDS UNDER s66 and s67 — INSUFFICIENT REASONS PROVIDED BY TRIAL JUDGE Clarke JA This is an appeal from the decision of Judge Burke given on 23 November 1994. The respondent worker was employed with the appellant as a service manager. On 6 May 1991 she was injured when she fell over at work. Thereafter she was paid compensation and those payments were still being made at the time of the trial. She brought an application in the Compensation Court claiming lump sum payments pursuant to s66 and s67 of the Workers' Compensation Act 1978. She gave evidence that she had had constant pain in her back and legs since the accident. She was manipulated upon and submitted to traction on 14 February 1992 and had another bout of traction on 26 February 1992. On 24 March 1993 a Dr Smith, a surgeon, carried out a spinal fusion operation that was followed by complaints of thrombosis in the legs. At the end of May 1994 the screws used for fixing her spine were removed and the respondent complained that following the operation she suffered from painful disabilities in both her legs whereas prior to the operation she had had only sciatic troubles in one of her legs. She also complained of depression and a stammer which had followed the operative treatment. The medical evidence in support of her claim was provided to the Court in the form of written reports. No doctor gave oral evidence and, of course, none was cross-examined. An example of the problems suffered by the respondent can be taken from the report of Dr Michael Aroni dated 17 August 1994. He said that she got a constant burning pain in her lower back which is made worse by excessive activity such as prolonged walking, bending, stretching, prolonged sitting or standing, change in weather, particularly in cold weather, and coughing and sneezing. She also had a very sensitive area around her left hip. In her right lower limb she had referred pain down the back of the thigh, the back of the calf, and suffered from pins and needles in her foot. The operative procedure did not improve her leg problems in the right lower limb. Following the operation she developed pains in her left lower limb. They were referred from back of the thigh down into the calf, and again there were pins and needles suffered in her left foot. She also had numb feelings on the inside of her left thigh. Five doctors gave estimates of the permanent impairment both to the respondent's back and her legs. Those estimates ranged from 25 per cent to 60 per cent impairment of the back, and between no impairment and 30 percent impairment of the left leg, and 20 per cent impairment of the right leg. The trial judge awarded the respondent 60 per cent in respect of permanent impairment of the back and 30 percent impairment in respect of each leg. He also awarded the 2 UNREPORTED JUDGMENTS respondent $37,000.00 which represented approximately 75 per cent of the total amount allowable for pain and suffering under s67. The appellant has appealed from both those findings and has relied substantially upon a supplementary ground of appeal which was added during the hearing, and that is that his Honour failed to give proper reasons for his conclusions. In support of that submission counsel for the appellant directed attention, specifically, to a statement in the judgment that Dr Canaris and Dr Shand on opposite sides of the record are really not far apart. His Honour considered that they used different terminology with different emphases, but they both described the same entity. Counsel also directed the court's attention to the use made by the trial judge of the histories given by the respondent to various doctors. Initially, the appellant had intended to raise a submission that it had been denied procedural fairness, but during the hearing the Court was informed that the appellant did not raise that matter as a specific ground, but sought to rely upon what it claimed were the deficiencies in his Honour's approach in support of the argument that there had been an inadequate disclosure of the reasoning process. In addition, counsel pointed out that the doctor who is often regarded as the most important assessing expert in a compensation case is the treating doctor. In this case that was Dr ALG Smith who did provide his estimate of the respondent's impairments. He considered she had a permanent impairment of the lumbar spine of 25 per cent, but he did not think that there was any loss of function in either lower limb, and, implicitly, he was of the view that there was no impairment of either lower limb. The trial judge also said in his judgment that it was universally agreed that the respondent had permanent impairment of her back. I should interpose the observation that agreement was not surprising as no one suggested otherwise. His Honour then went on to point out that the only thing that was not agreed was the degree of impairment. The submission made by counsel relating to the judge's reasoning process must, in my opinion, be understood against the background of the submission made by the appellant to the trial judge at the end of the evidence. That was very short, and I will read it in totality: "The issue obviously is the assessments. We have a range of assessments from the applicant's side of the fence ranging from the treating doctor, Dr Smith, who says 25 per cent and none of each leg. Dr Aroney who has qualified says 30 to 40 per cent and 20 per cent of each leg. Dr Searle says 60 per cent and 30 of the left and 20 of the right. Dr Bodel says 30 to 35 and 8 to 10 of each leg. Dr Power says 27 per cent and 5 per cent of each leg and, as far as the psychiatric evidence is concerned, your Honour, it is not surprising - I think there is no issue really that she has had some problems with depression and has developed a stammer since the accident. It has been suggested by the qualified doctor, Dr Canaris, that she have treatment. At this stage she has had one treatment, there is no evidence one way or the other to suggest whether the stammer or stutter can be treated. One assumes that if the doctors are suggesting treatment for both her depression and her stammer it is something that should be able to be at least helped in the future. At the stage that Dr Canaris saw the applicant in September, he said that she had not had any psychiatric treatments to date so obviously the treatment has not been carried on for any length of time and really it is a matter for your Honour to assess the applicant's impairments." URJ COLES MYER LTD (TRADING AS K-MART) v HELLEGERS (Clarke JA) 3 It will be observed that contrary to the submission made by the appellant's counsel his predecessor thought that there really was no issue in so far as the depressive aspect of the respondent's claim was concerned. More importantly, counsel left it to his Honour to assess the respondent's impairments without seeking to influence that assessment by submission in any way at all. To me it is important that the final reasons for judgment be understood in the light of the submissions made. I do not mean to suggest, in saying this, that because counsel simply handed the problem to the judge the latter is relieved from the judicial obligation of providing proper reasons in the circumstances. What I do hold to is that where a matter is left to the judge in this way, relatively short reasons would be quite adequate to satisfy the obligation. It may even be that if his Honour had simply said, "it has been left to me to assess the respondent's impairments" and assessed them at X per cent that that would have been a sufficient compliance with his duty. I would not myself encourage such an approach by trial judges, because it would, or may, reflect an undue reliance upon the submissions as justifying a very limited exposure of the reasoning process. Of course, in this case the trial judge did not limit his reasoning process in that way. He went further and referred concisely, no doubt, to the fact that the respondent had very little back functioning. He was, as I understand it, supported by the evidence in that conclusion and he was then placed in a position of having to assess the percentage impairment. Likewise, he referred to the leg problems, again albeit shortly. I do not think it can be said that his approach to the psychiatric evidence was either inadequate or demonstrated a lack of sufficient reasoning. On that issue, in my opinion, he was reflecting the submissions of both counsel and for one party to suggest otherwise in this Court is, tantamount to that party seeking to run a case which had been, in a sense, abandoned at the trial. The Court has, as I have indicated, been helped by the transcription of the addresses of counsel. I do not propose to cite the longer submissions of the respondent's counsel nor the dialogue that took place with his Honour. I do, however, propose to point out that during the course of that dialogue a great deal of his Honour's thinking was exposed, and if counsel for the appellant had wished to respond to any of the matters then raised she had an opportunity of which she took no advantage. In my opinion, the conclusions relating to the impairments of the respondent's back and legs was supported by the evidence, and the judgment did not fall below the standard required in so far as the reasoning process was exposed. It seems to me that it was well open to his Honour to reach the conclusion which he did, which was supported even on precise percentages, in all respects except the degree of impairment of one leg. However, a trial judge, while bound to pay regard to and give due weight to the assessments of doctors, whether treating or reporting, is also entitled to have regard to his own impression of the impairment resulting from the evidence given by the respondent and other lay witnesses, to the extent that the judge accepts that evidence. In these circumstances, I do not think it can be said that any error has been shown in either the way his Honour dealt with the assessment or the expression of his reasons for dealing with the assessment in that way. Counsel also challenged the award in respect of the claim for pain and suffering under s67, but he freely conceded that that submission was in a real sense bound up with the way in which his Honour dealt with the claim under s66. I think the approach is correct. In my opinion, it is clearly open for his Honour 4 UNREPORTED JUDGMENTS to make the award in the way he did in respect of a seriously disabled lady. I would be disposed to dismiss the appeal with costs. Mahoney JA I agree. 5 Priestley JA I agree. Mahoney JA: The orders are, therefore, the appeal is dismissed with costs. Counsel for the Appellant: MJ CRANITCH 10 Solicitors for the Appellant: NEVILLE AND EDWARDS Counsel for the Respondent: TM OWER Solicitors for the Respondent: PAUL A CURTIS