SULTAN v AUSTRALIAN IRON AND STEEL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and POWELL JJA 17 August 1995, 31 August 1995. [1995] NSWCA 462 WORKERS COMPENSATION ACT 1987 S67 — AWARD FUTURE PAIN AND SUFFERING MUST EXCEED AWARD PAST PAIN AND SUFFERING FACTS: The appellant worker was an employee of the respondent when he was inadvertently hit by a hammer. This led to great pain in his elbows, both of which had to be operated upon. The worker began proceedings under s66 and s67 of the Workers Compensation Act, 1987. The trial judge made awards under both sections. As to 67, the trial judge made an award in the sum of $9,000 to be apportioned as to $7,000 in respect of past pain and suffering and $2,000 in respect of future pain and suffering. The worker appealed against this award. HELD: (1) (By Meagher JA, Sheller and Powell JJA agreeing) In view of the fact that the trial judge made no adverse comment on the worker's credibility and that the respondent scarcely challenged that credibility, it should be assumed that the trial judge accepted the worker as a witness of truth. (2) (By Meagher JA, Sheller and Powell JJA agreeing) The sum of $2,000 was risibly small to compensate the worker for future pain; and, on the medical evidence, the worker's future pain must exceed his past pain. ORDER (1) Appeal allowed. (2) Order number 2 of 2 February 1993 set aside. (3) In lieu thereof order the respondent pay to the appellant the sum of $16,000 compensation under s67, $7,000 to be apportioned in respect of past pain and suffering. (4) Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act. (5) This order to take effect as from 2 February 1993. Meagher JA This is an appeal by a worker, Mr Khaled Sultan, against an award of O'Toole CCJ on the grounds of inadequacy. Mr Khaled Sultan migrated to Australia from his native Jordan in January 1967 and started work with the respondent at its Port Kembla Steelworks in February 1967. He worked until April 1968. He left for a short period, returning in July 1968. He then worked until June 1971, not returning to the respondent's employ until October 1973, but since that date working there until 1993. It is not easy to work out from her Honour's judgment exactly when the accident the worker relied on took place, but from one of the medical reports it would seem to be about 1983. At about this time - and, indeed, at all times, - he was engaged in heavy work. When he was working with an apprentice boilermaker putting a steel plate inside a locker he inadvertently jammed his finger as the apprentice was hitting the steel plate with a hammer and inadvertently hit him. This led to great pain in both elbows, both of which had ultimately to be operated upon. He commenced proceedings for lump sum awards under s66 and s67 of the Act. As to s66, her Honour awarded $ 18,375.00 in respect of his right arm and $23,520 in respect of his left arm. The loss of use was assessed by her Honour 2 UNREPORTED JUDGMENTS as 25% and 30% respectively. No complaint is made about the s66 awards. As to s67, her Honour made one award in the sum of $9,000 to be apportioned as to $7,000 in respect of the past and $2,000 in respect of the future. It is this award which has attracted an appeal. In order to evaluate the appeal one must have regard to the appellant's evidence. The Appellant continued doing heavy work involving the use of both of his arms until 2 September 1991 after which the respondent placed him on restrictions which limited him to much lighter work. The appellant gave evidence which was not challenged by the respondent that for some two years prior to the operation on his right elbow his level of pain was such that sometimes he could not sleep. The appellant conceded that although he had less pain in each elbow after the operation he was only pain free if he did not in any way use his arms. Even very moderate activity, such as shaving and holding a telephone for more than about five minutes, would provoke discomfort. Because of pain the appellant had had to give up ten pin bowling, and was very restricted in terms of lifting anything heavy, digging in his garden and mowing his lawns. In addition the appellant was also very restricted in the activities he could engage in with his children; and increased pain was provoked in his elbows on any change of weather, either from hot to cold or from cold to hot. Changes of weather particularly interfered with the appellant's capacity to enjoy restful sleep. Pain was also provoked by driving a motor vehicle for long distances, or when having to turn the steering wheel to negotiate a sharp curve. Lesser pain was experienced in the right shoulder if the appellant had to lift his right arm at or about shoulder height for any period or when engaging in moderate lifting. Occasionally, the appellant would feel some pain in this elbows on dressing. Such was the overall level of the appellant's pain and suffering that since his operations he had to have physiotherapy, on the average twice a week, because due to stomach pain the appellant was unable to take pain killers. Her Honour made her usual careful study of the worker's syntax and morphology, and in this case, of his "catenation of language" as well. As a result of her labours in this behalf she came to the conclusion that the worker was "intelligent and quick witted". She did not, however, state whether she believed him or not; but, in view of the fact that she made no adverse comment on his credibility and that the respondent scarcely challenged it, we must, I think, assume that her Honour accepted Mr Khaled Sultan as a witness of truth. His medical condition, as it was at the time of the hearing before her Honour, is described by Dr Roth, one of the respondent's doctors, as follows: "Mr Sultan developed symptoms referable to his elbows, initially in 1983, and I believe that the incident at that time served to precipitate symptoms from pre-existing osteo-arthritis in both elbow joints and the work which he has been performing has also served to aggravate this underlying condition. He has undergone surgery to his right elbow as outlined above and loose bodies were removed from his right elbow joint. At this time he still has residual symptoms as described which I believe are related to osteo-arthritis ill both elbow joints and examination at this time showed residual restriction of movement in both elbow joints which I believe will persist permanently. Apart from analgesics and anti-inflammatory agents, no further specific treatment is required for him at this time and he is fit to continue working, although it would be appropriate for him to avoid work which requires lifting weights in excess of 5 kilograms and URJ SULTAN v AUSTRALIAN IRON AND STEEL PTY LTD (Powell JA) 3 performing forceful pushing and pulling movements and forceful pronation and supination of both forearms. He has a permanent residual disability in his elbows which I would assess to be of the order of approximately 25% loss of function of the right upper limb and approximately 20% loss of function of the left upper limb. His prognosis must remain uncertain although his residual symptoms will persist permanently and slowly with the passage of time. His symptoms will increase in severity as the degenerative disease in both elbow joints progresses. He remains vulnerable to further injuries to his elbows in the future and it is likely that he will develop intermittent exacerbations of his pains in the future precipitated by relatively minor trauma. Both counsel for the worker and for the employer agreed that the only reasons given by her Honour for the figures of $7,000 and $2,000 were as follows: "On the evidence it is necessary to exercise an element of arbitrariness in determining the applicant's claims pursuant to s66 and s67." We can only guess (or, as counsel for the employee more politely said "surmise") what, if any, logic was involved in the arbitrary assessment. Whatever logic (if any) there was must have been deficient. In the first place, $2,000 seems a risibly small sum to compensate Mr Khaled Sultan for another 20 or 30 years' pain; and in the second place, on the medical evidence, his future pain must exceed his past pain. In my view, the award should be set aside. In re-assessing the award, the starting point must be the $7,000 awarded in respect of past pain. The employee has not appealed against it. The figure for future pain should exceed the figure for past pain. In my view, a figure of $9,000 would be appropriate for future pain. This would, when added to the $7,000, amount to about 33% of $49,050, the maximum permissible amount. It would be appropriate for pain which was serious but not excruciating, infinite but not perpetual, major but not extreme. In my view the following orders should be made: 1. Appeal allowed. 2. Order number 2 of 2 February 1993 set aside. 3. In lieu thereof order the respondent pay to the appellant the sum of $16,000 compensation under s67, $7,000 to be apportioned in respect of past pain and suffering. 4. Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act. 5. This order to take effect as from 2 February 1993. Sheller JA I agree with Meagher JA. Powell JA I agree with Meagher JA (1) Appeal allowed. (2) Order number 2 of 2 February 1993 set aside. (3) In lieu thereof order the respondent pay to the appellant the sum of $16,000 compensation under s67, $7,000 to be apportioned in respect of past pain and suffering. (4) Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act. (5) This order to take effect as from 2 February 1993. COUNSEL: 4 UNREPORTED JUDGMENTS Appellant: J INGRAM Respondent: AL MITCHELL SOLICITORS: Appellant: MORRIS MAY Respondent: BLAKE DAWSON WALDRON