BAKER v CRITTENDEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and HANDLEY JJA 5 June 1995, 17 July 1995 [1995] NSWCA 37 WORKER SEVERELY INJURED WHILE DRIVING BULLDOZER IN THE COURSE OF HIS EMPLOYMENT — trial judge finds worker to be totally incapacitated for work — award for permanent impairment of back and four separate awards for loss of efficient use of left arm above and below elbow and left leg above and below knee — the appellant argues trial judge erred in (1) finding total incapacity, (2) finding a causal connection between the accident and the back impairment, (3) making four separate awards in respect of two limbs contrary to the decision of the High Court in KB Hutcherson Pty Ltd v Correia (1995) 69 ALJR 280. HELD: On the materials before him the judge was entitled to make the findings of fact which he made in relation to total incapacity and back impairment. At the time the trial judge made the orders, the practice of making two assessments in respect of the one limb had been approved by this court. The High Court has now said that this practice is wrong, at least in respect of loss of efficient use of a leg. However, no point was taken before the trial judge on the correctness of the practice of making more than one assessment in respect of the same limb. Appellate courts will not usually permit a point not taken at first instance to be raised on appeal where course of hearing may have been different if point raised — that approach should be followed here. Per Mahoney JA, it may, in special factual situations, be necessary to adapt or qualify the approach laid down in Hutcherson. This is not such a case. However, appeal should be dismissed for reasons outlined by Priestley JA. ORDERS Appeal dismissed with costs. Mahoney JA The facts are detailed in the judgment of Priestley JA which I have had the advantage of reading. I agree generally with his Honour's judgment. The appellant submitted that the trial judge erred, inter alia, in awarding separate items of compensation for the loss of use of the appellant's left leg above and below the knee and of his left arm above and below the elbow. Manser CCJ, in making awards separately in respect of these matters, acted in accordance with the decisions of several of the judges of this Court in that regard: see, eg, J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632. However, subsequent to his Honour's decision, the High Court of Australia adopted a different construction of the relevant statutory provisions: KB Hutcherson Pty Ltd v Correia (1995) 69 ALJR 280. As the High Court indicated in its joint judgment, the relevant statutory provisions provide for compensation in respect, inter alia, of two classes of cases: "loss" of the relevant thing, eg, by amputation; and loss of the use or effective use of that thing. The difference between the construction adopted by the High Court and by this Court led, or would have led, to awards of a different nature in respect of those two classes of cases. Upon the approach adopted by the relevant judges of this Court, where a worker had suffered loss of use of, eg, a leg above the knee and separately of the 2 UNREPORTED JUDGMENTS leg below the knee, there would be two separate awards of compensation. On one view of the rationale adopted by such judges, this would apply also in the case of a loss of the leg, eg, by amputation. At the risk of over-simplification the construction adopted by the High Court was directed to the reconciliation of the result of the statutory provisions in each of these two classes of cases. Where there has been a simple loss of, eg, a leg above the knee by amputation, the High Court accepted that only one award of compensation is to be given: one sum is awarded where the amputation is at or above the knee and a different sum if the amputation is below the knee. But, whatever be the point at which ie amputation took effect, one sum was to be awarded. The Court recognised, I think, that in the second class of case, loss of use alone, the factual position may be more complicated. Thus, the injury may, as part of the single effect of it, cause loss of use to the limb both above and below the knee. There may be the same degrees of loss or different degrees of loss at different places. But the position may be more complicated. The injury may do one kind of damage (and so cause one kind of loss of use) above the knee and another kind of damage (and so cause a different kind of loss) below the knee. And the degrees of loss above and below the knee respectively may be quite different. The view taken by judges of this Court was that there were, as it were, separate items of "loss of use" and that these were to be compensated for separately. The result of this would be, as the cases demonstrated, that the overall compensation in amputation cases would be different from (ordinarily less than) compensation in loss of use cases. The construction adopted by the High Court has, I believe, rejected that approach. It has (special cases apart) contemplated that the compensation in each class of case will be the same. The approach adopted is, in my respectful opinion, summarised: 69 ALJR at 283; as follows: "In the end the question is a fairly straightforward one. The Table provides under the heading 'Leg injuries' for loss of either leg at or above the knee and loss of either leg below the knee. The points mentioned in the Table ('leg at or above the knee' and 'leg below the knee') identify, in relation to loss of use, the same maximum level of compensation as the loss by amputation at those points and require the same factors to be considered in the assessment of compensation, namely, the extent to which the entire limb below the uppermost point of affection is lost or its use is lost. No doubt, medical opinions may differ as to the degree of loss in any case where the use of a limb has been affected. But nothing in the Table or in the Act itself warrants making two assessments in the case of one leg." The thrust of the High Court's view lies, in my respectful opinion, in the words "\.. the extent to which the entire limb below the uppermost point of affection is lost or its use is lost". It may perhaps, in special factual situations, be necessary to adapt or qualify this approach. There may be cases in which the losses at the "above" and "below" points are different, quite different. In such cases, it may be necessary to consider whether the losses, though caused at the one time, have been caused by a single injury" or "loss"; it may be necessary to consider whether, if they have, they are yet losses which fall within the precise terms of the Table. These are matters which may require attention in appropriate cases. However, it has not been suggested that the facts of the present case are distinguishable in principle from those considered in the Hutcherson case or that a different principle should be applied in this case. In the Hutcherson case: see the URJ BAKER v CRITTENDEN (Priestley JA) 3 detail of the facts at 281F; it was found that the loss of use of the relevant limbs differed in relation to the portions of the limbs above and below the relevant joints. The same applied in the present case. No distinction has been suggested. Ordinarily, this conclusion might be expected to require the Court to reconsider the awards made by the judge. However, as Priestley JA has pointed out, judges of this Court have already determined the approach to be adopted where such a situation has arisen and where no issue has been raised at the trial as to the correctness of the approach adopted by the judge. In my opinion, it is proper that the Court follow the precedent established by judges of the Court in this regard. Upon the other submissions made in the appeal, I agree with the conclusions of Priestley JA. The appeal should be dismissed with costs. Priestley JA In this case the employer disputes the conclusions drawn by the trial judge, Manser CCJ, from the evidence before him as to the consequences to the worker of an accident in which he was injured at work. The worker, then recently turned fifty years of age, was driving a bulldozer on 22 September 1987 in the course of his employment when, in circumstances of which there was apparently no eye witness, and which he himself does not remember, he was hit in the head, apparently by a piece of wood. An x-ray and a CT scan showed that he had suffered a right temporal fracture and "had immense (R) extra dural haemorrhage of 4.5 cms depth in the (R) temporal region. A small (L) subdural haemorrhage was evident". A craniotomy was performed in the right temporal region. A large extra dural haematoma was then evacuated. It seems to have been expected at the time that the worker was likely to die. However he gradually recovered. He himself had no memory of what happened to him from the time immediately before he suffered the wound until fourteen days afterward, in hospital. However, he never became the same man he had been before-the accident. His history to the age of fifty had been one of steady work done over long hours. Despite some attempts to work following the accident, he never again worked more than sporadically, and then for short periods, during which he felt pain, discomfort and an inability to do what he had done before. At home he changed from having been an active, interested and energetic parent, husband and member of the community, into a passive, silent person with little time or patience for his wife and family. Evidence of these matters was given principally by the worker and his wife and was accepted by the trial judge. The trial judge said the worker's wife was transparently sincere and honest. One point made by the judge was that the worker himself showed little understanding of what had happened to him so far as his personality was concerned. He himself thought all was still well. On this the trial judge commented that the worker had "a perception of his circumstances which might well bear little resemblance to the facts in quite significant areas". In coming to his conclusions as to what awards he should make the trial judge said he accepted the worker had been burdened by the continuing effects of brain damage which he suffered from the accident, that it had affected his mental powers and was one of the factors leading to his continuing unemployability. He said that Drs Brooder and Newcombe had both been satisfied the applicant was in effect totally incapacitated and not employable. He accepted that assessment. 4 UNREPORTED JUDGMENTS He also accepted that disabilities which manifested themselves, after the accident, in the worker's back, left arm and hand, and his left leg were consequences of the brain damage. His findings were that the worker suffered brain damage, which was continuing, in the accident at work on 11 September 1987; that he had thereafter been totally incapacitated for work; that he had suffered a permanent impairment of his back, entitling him to 15 per cent of the amount prescribed under s66(1); namely $12,000; that he had suffered a 12 per cent loss of efficient use of his left ann, at or above the elbow; that he had suffered a 12 per cent loss of efficient use of his left arm, below the elbow; that he had suffered a 10 per cent loss of efficient use of his left leg, at or above the knee; and that he had suffered a 10 per cent loss of efficient use of his left leg below the knee. For these last four matters he awarded the sums of $7,200; $6,720; $6,000; and $5,600. He also awarded $35,000 compensation under s67. The employer appealed. The principal argument in the appeal fell into two parts. First, the employer contended that on the evidence Manser CCJ was wrong to have concluded that the worker's injury had been totally incapacitating. Second, it was submitted that in any event the judge's reasoning was unsatisfactory in regard to the award made for permanent impairment of the worker's back. I do not think there is any merit in the first argument. In the worker's case reports from Dr Brooder were tendered, and he was called as a witness. He gave persuasive reasons supporting his opinion that the worker was not capable of working. Reports in evidence from Dr Newcombe were to the same effect. Against these it was submitted for the employer that (i), the worker had worked at various times after the accident, (ii), opinions stated in the written reports of Drs Brooder and Newcombe were based on incomplete histories, (iii), the opinion of Dr Matheson whose evidence by way of report and orally was led by the employer, was to the contrary, and should have been accepted, and (iv), a video of the worker was inconsistent with his evidence. When the first point is looked at, the evidence to my mind fully supports the trial judge's apparent factual conclusion, that what the employer categorised as post injury "work", was in reality work attempted by the worker, not only without success, but in a way that helped to demonstrate his incapacity. The second point ignored the fact that all facts argued to have been previously unknown to Dr Brooder were put to him in cross-examination, following which he (again persuasively to my mind) remained of the same opinion. The third point is of no weight either if Manser CCJ was right in thinking (as in my opinion he was) that Dr Matheson's explanation did not account for the worker's condition as satisfactorily as those of Drs Brooder and Newcombe. Finally, having seen the video, I do not think it provides any basis for interfering with any of the trial judge's findings. The employer's submission about the award for the worker's impaired back is based upon much the same line of argument as that directed against the finding of total incapacity, together with two further arguments. The first of these was that there was such an interval between the injury and the first complaint or investigation of back pain that it cast doubt on the reality of any connection between the two. The second was that the trial judge had given no satisfactory explanation of his finding that the back problem was one of the sequelae. URJ BAKER v CRITTENDEN (Priestley JA) 5 The first point founders on the facts that there are some hospital records of complaint of back pain soon after the accident and that on the probabilities it is understandable that it was only as the worker slowly recovered from his near fatal head injury that the lesser problem of a back which was slowly growing more painful was brought to the notice of the doctors. The second point is to some extent sound. Manser CCJ noted the back claim, said the attention to it by the doctors was less than satisfactory (I presume he meant unsatisfactorily dealt with in evidence, not in treatment) and then said the following about the back claim, and no more: "Two possible explanations appear to be advanced. Doctor Newcombe suggests that the applicant had spondylosis of the LS vertebra, although it is not altogether clear upon what evidence he was basing that conclusion. He, like Dr Collins, appears to be satisfied that the applicant had such a condition. Dr Newcombe [the parties agreed this was a slip for Brooder] on the other hand, seems to suggest that the pain in the back might be cerebral in origin. At all events, those doctors who have assumed that there was no contemporaneous complaint of back injury, to come to the conclusion that none was sustained at the time, appear to me to be, regrettably, wrong. At the time of the worker's injury, the maximum amount provided under s66 was the sum of $80,000.00. When I compare the applicant and his circumstances with those of a 'most extreme case' as I am required to do by Note (a) to the Table, I find the applicant to fall in the range of 0 per cent to 60% for permanent impairment of the back to be at 15%; that is to say, I find him to be one-quarter of 'a most extreme case', to whom is reserved the percentage of 60 per cent of the amount of $80,000." In saying that the submission that the trial judge had given no satisfactory explanation of his finding about back impairment was to some extent sound, I had in mind that the judge's reasons on this aspect of the case were elliptical and not particularly clear. However, I nevertheless think that a reading of the whole of his reasons sufficiently discloses his line of thinking. I take this to have been that because the worker's back had been giving him no trouble before the accident, he was complaining of soreness in the back within weeks of the accident, and two doctors were of the view that his back impairment was probably caused by the accident, although their explanations of how this came about were different, he should conclude that on the balance of probabilities the back impairment was a result of the accident, one or other of the explanations given by the doctors was right and it was unnecessary for him to choose between them. That is, from the doctors' differently based opinions and the sequence of events he drew the conclusion that a causal connection between the accident and the back impairment was shown, according to the civil onus of proof. On the materials before him, I think he was entitled to reason in this way and I myself would adopt that line of reasoning. A further point was taken by the appellant, concerning the separate orders made by the trial judge for losses of efficient use of the left arm both and above and below the elbow and losses of efficient use of the left leg above and below the knee. This was in accordance with the accepted practice at the time Manser CCJ made his orders (16 November 1993) and had been approved in this court earlier in the year: J. Odlin Shopfitting International Pty Ltd v Kaljanac (1993)29 NSWLR 632. However, in KB Hutcherson Pty Ltd v Correia (1995) 69 ALJIR 280, decided on 16 March 1995, the High Court had said the practice was wrong 6 UNREPORTED JUDGMENTS and that two assessments could not be made in respect of one leg. The appellant said the same reasoning would apply to an arm. It was said that Manser CCJ's orders were therefore in conflict with the interpretation of the statutory provisions stated by the High Court and that the four awards for upper and lower left arm and leg would have to be set aside. However, the point which was dealt with by the High Court in KB Hutcherson was not taken before Manser CCJ. The various estimates made by the medical practitioner witnesses were, with one exception, not directed to the approach afterwards retrospectively laid down by the High Court. One medical witness had given an opinion of percentage loss of efficiency in terms suitable for application of the High Court's ruling in Hutcherson. In the appeal counsel for the appellant said his client was agreeable to the court acting on that doctor's estimate. However counsel for the worker did not agree and there is no indication in Manser CCJ's reasons that he was disposed to accept the estimate of that witness in that respect. I therefore do not think this court can properly make the estimates and the result would be if the appellant's submission on this point were to be upheld, that a new trial of the issue would have to be ordered. It does not seem to me to be fair to order a new trial in such circumstances. The employer was content to litigate the worker's claims on the basis of the standing authorities and the usual practice. This court does not know why the point was not taken. For all the court knows, the decision not to take the point may have been quite deliberate on the part of the employer. Rather than face the prospect of trying to get special leave from the High Court to consider the matter, the employer may have been content to contest the issues in light of the existing practice. The court does not know. But in such circumstances appellate courts will not usually permit a point not taken at first instance to be raised on appeal. This seems to me to be a case where that approach should be followed. (The approach is discussed more extensively, with citation of authority, in Australian Specialised Meat Products v Turner, judgment in which was handed down earlier today.) In my view therefore, this court should not entertain this ground of appeal. In my opinion the employer's appeal fails and should be dismissed with costs. Handley JA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: JL Sharpe Solicitors for the Appellant: PV McCulloch and Buggy Counsel for the Respondent: CE O'Connor QC with TA Gotterson Solicitors for the Respondent: Friedlieb Glynn Byrne