LOURDES HOUSE HOSPITAL v WHEELER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and POWELL JJA 8 March 1996, 3 October 1996 [1996] NSWCA 331 WORKERS COMPENSATION — Assessment and amount of compensation — By agreement — Assessment by medical panel — Worker applied to, and received from, employer sum appropriate to medical panel finding — Subsequent deterioration of injury — Whether Award for further compensation may be made. WORKERS COMPENSATION — Assessment and amount of compensation — Lump sum award for loss and for pain and suffering — Subsequent deterioration of injury — Worker applies for further compensation — Does not seek reconsideration of previous award — Whether Award for further compensation may be made. Priestley J BACKGROUND Mrs B Wheeler, the respondent worker in this appeal, suffered injury in the course of her employment with Lourdes House Hospital (the appellant employer) on 27 July 1987. She applied to the Compensation Court for compensation under the Workers Compensation Act 1987 (the 1987 Act). THE WORKER'S BACK: 1989 PAYMENT. Before her application came before a judge for hearing a medical panel, on 10 May 1989, assessed the permanent impairment of her back at 10%. The appropriate amount for this percentage was then $4,800, which she was paid, without any order of the court, on 29 July 1989. 1990: THE COURT MAKES WEEKLY COMPENSATION AND OTHER AWARDS. On 26 November 1990 Herkes CCJ made a number of orders and awards in her favour. One was for weekly payments of compensation, about which no question has subsequently been raised. 1990: S66 AWARD IN REGARD TO RIGHT LEG. Herkes CCJ also made an award for $9,000 under s66 in respect of 15% permanent loss of efficient use of the right leg at or above the knee. No question has subsequently arisen concerning this award. 1990: NO AWARD FOR WORKER'S BACK. Herkes CCJ made no award under s66 in respect of me worker's back. He noted that the employer had paid her "in relation to 10% permanent impairment of the back". SUBSEQUENT APPLICATION FOR AWARDS UNDER S66 FOR BACK AND LEFT LEG, AND CONSEQUENTIAL S67 AWARD. The condition of the worker's back and left leg subsequently deteriorated, in particular following an operation on 8 March 1991. She applied for a further lump sum under s66 in respect of further impairment of the back and for awards for 15% permanent impairment of the left leg at or above the knee and 10% permanent impairment of the left leg at or below the knee. She also sought a further award under s67. 1994: FURTHER APPLICATIONS SUCCESSFUL. By orders and awards made on 2 March 1994 Davidson CCJ ordered the employer to pay the worker lump sum compensation for further losses under s66. 2 UNREPORTED JUDGMENTS As to the claim for further loss in respect of the alleged 30% permanent impairment of the worker's back, he awarded $17,415 and ordered credit to be given for the $4,800 paid in 1989. As to the claim of 10% loss of use of the left leg at or above the knee he ordered compensation of $7,256.30. As to the claim for 5% loss of use of the left leg below the knee he ordered compensation of $3,386.25. As to the claim under s67 he ordered the employer to pay $20,000, credit to be given for any payment previously made with respect to the s67 award. Various consequential orders were made. THE APPEAL. In this court Davidson CCJ's order in regard to the back has been attacked on the basis that he had no power to make it. The same argument was put at first instance. It was based on what the employer's counsel said was the operation of Division 4 of Pt3 of the 1987 Act and in particular the effect of Note (a) to the Table of compensation for permanent injuries which is at the end of Division 4. Davidson CCJ's rejection of the argument was based on his view of the way Division 4 operated. The employer has also appealed against Davidson CCJ's awards in regard to the left leg and under s67. The grounds of these appeals also depend upon the operation of parts of Division 4. Before dealing with the appellant employer's first argument I will consider the aspects of Division 4 which appear to be relevant to the appellant employer's various grounds of appeal. DIVISION 4 OF PT3. Pt3 of the 1987 Act was headed COMPENSATION - BENEFITS Division 4 was headed Compensation for non economic loss. Division 4 contained s65 to s73, ending with the Table previously referred to headed COMPENSATION FOR PERMANENT INJURIES. The headnotes to s65, s66, s68, s70, s71, s72 and s73 all refer the reader to various parts of s16 in the Workers Compensation Act 1926 (the 1926 Act). The Table following s73 of the 1987 Act resembles the Table following s16 of the 1926 Act. Many of the ideas in Division 4 and much of its wording are plainly derived from the former s16. Division 4 introduced some ideas not present in s16. S16(1) of the 1926 Act provided: A Worker who has received an injury mentioned in the first column of the Table hereunder... shall be entitled to receive from his employer by way of compensation for that injury in addition to any other compensation prescribed by this Act the amount indicated in respect of that injury in the second column of that Table." In the 1987 Act the corresponding provision became s66(1) as follows: "A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $123,400 set out opposite to that loss in that Table". Under s16(1) compensation depended on receipt of an injury mentioned in the first column of the Table. A worker was compensated "for that injury". Under s66(1), the worker became entitled to compensation, not for injury, but for "loss of a thing mentioned in the Table... as the result of an injury", and the compensation to which the worker became entitled was "by way of compensation for the loss". URJ LOURDES HOUSE HOSPITAL v WHEELER (Priestley J) 3 There is no independent definition in Division 4 of "a thing". The words of s66(1) imply that every case in the Table against which a number or range of numbers appears under the heading "Percentage of maximum amount payable", is a thing. Underneath the heading COMPENSATION FOR PERMANENT INJURIES the Table next has a heading "Nature of injury". There then follows a list with headings in bold print: Speech loss; Sensory loss; Hearing loss; Loss of vision; Arm injuries; Hand injuries; Leg injuries; Foot injuries; Loss of sexual organs etc; Brain damage; Permanent impairment of back, neck, pelvis; and Disfigurement. Each of these headings has beneath it one or more cases of the heading; eg under Speech loss appears Loss of power of speech; under Sensory loss appears Loss of sense of taste or smell and also Loss of senses of taste and smell. Each of the cases given under all the headings from Speech loss down to and including Loss of sexual organs etc are described as a Loss of some kind. The case given under Brain damage is "Permanent Brain damage being an injury... not or... not wholly an injury otherwise compensable under this Table". The cases given under Permanent impairment of back, neck, pelvis are Permanent impairment of the back, Permanent impairment of the neck and Permanent impairment of the pelvis. Those given under the heading Disfigurement are Severe facial disfigurement and Severe bodily disfigurement, in each case "being an injury... not or... not wholly an injury otherwise compensable under" the Table. It is against each of what I have called "cases" that a number or range of numbers appears under the previously mentioned heading "Percentage of maximum amount payable". The "Permanent injuries" listed in the Table thus comprise different classes of injury. Some consist of the actual physical loss of part of the body; some of the damage to a part of the body; some of the loss of a faculty; some, by the operation of s65, of the loss of the ability to use part of the body. S65 also supplies definitions for some of the ideas, including, "loss" and "thing", introduced by s66, which were not present in the former s16. "'Loss' in relation to a thing, means... the loss of that thing": s65(1)(a), and also means "the permanent loss of the use, or of the efficient use, of that thing": s65(1)(b). S65(2) provides, in part, that "a reference to a loss mentioned in the Table... includes a reference to... the permanent impairment of the back, neck or pelvis... and severe facial disfigurement or severe bodily disfigurement". Thus "permanent impairment of the back" is made a "loss of a thing mentioned in the Table" for the purposes of s66. S66A and s71 both explicitly recognise that, at least in respect of occupational diseases, there may be an award of additional compensation to a worker who has already received compensation for the loss of a proportion of a thing for a further loss of that thing. S68 recognises that a loss may be suffered by a worker, which is to be compensated, which is "the loss of a proportion (but not all) of a thing mentioned in the Table". In that case the compensation payable is "a percentage of the compensation payable for the total loss of the thing". S69 empowers amendment of the Table by regulation "by adding specified losses and by fixing in relation to each such additional loss a percentage of the maximum amount that is payable in respect of the loss". 4 UNREPORTED JUDGMENTS The "loss" idea is not carried completely consistently through Division 4. S66(3) requires the compensation payable for losses to be calculated by reference to the ceiling amount in force at the date of injury. S72(4) speaks of "a person claiming to be entitled to compensation for any of the following losses or impairments" and maintains the distinction between losses and impairments throughout that subsection and the following subsection. Nevertheless, it appears quite clear from the substantive parts of s66 that it is that section which entitles a worker to receive compensation for the loss of a thing mentioned in the Table equal to the percentage set out opposite to that loss in the table. It thus seems that every "case" in the Table against which a figure or a range of figures appears under the heading "percentage of maximum amount payable" must be treated as a "loss" for the purposes of s66. Those cases include permanent brain damage, permanent impairment of the back, neck and pelvis and severe facial and bodily disfigurement. That is, these cases must be treated as "losses" and, for the purposes of Division 4 "losses" of "things", or, as "things" of which there may be a "permanent loss of the use, or of the efficient use". Thus, Division 4, insofar as, broadly speaking, it does the work which s16 of the 1926 Act used to do, does so by using much of the terminology of the previous section, but also by introducing new terminology; moreover entitlement to compensation is made dependent on the combination of two of the new terms, "loss of a thing". Another substantive concept in Division 4, not present in the previous s16, is provided for in s67(1) which says that "A worker who has suffered a loss mentioned in the Table... (or two or more of any such losses as a result of the same injury) is entitled to receive... by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation... an amount not exceeding [a specified sum]". By virtue of s67(2) a worker is not entitled to any amount under s67(1) if compensation paid or payable under s66 for the same loss or losses is less than 10% of the maximum amount referred to in s66(1). It follows that the entitlement to receive an amount under s67(1) is dependent upon the worker's being entitled under s66(1) to compensation of no less than a particular amount, for loss of a thing. Whether or not the draftsman of Division 4 intended the new terminology to have particular substantive effects, the terms "loss", "thing", and "loss of a thing", have become, by the way they are used in the Division, and as a matter of ordinary language, fundamental to entitlement to compensation and receipt of amounts under the Division. There are further provisions in Division 4 which need to be referred to but which I will deal with in considering the distinct grounds of appeal. FIRST GROUND OF APPEAL. The first ground of appeal was to the effect that the worker's acceptance of $4,800 on the 29 July 1989 discharged any obligation of the employer under s66 in regard to the consequences of the back injury the worker suffered on 27 July 1987. "Permanent impairment of the back" was a case in the Table against which the range of figures 0-60 appeared under the heading "Percentage of maximum amount payable". Note (a) to the Table provided that in range of percentage cases the maximum percentage was payable only in a most extreme case and the percentage payable in any other case was to be reasonably proportionate to the maximum percentage "having regard to the severity of the matter". URJ LOURDES HOUSE HOSPITAL v WHEELER (Priestley J) 5 The note concluded by saying "the amount payable in any particular case shall, in default of agreement,... be determined... by the Compensation Court". The employer submitted that there had been "agreement", within the meaning of Note (a) and that that was the one and only amount payable in the case of the worker's back. An ingredient in this submission was that the requirement that the percentage payable was to have regard to the severity of the matter made it necessary to consider what might happen in the future in regard to the back. All this indicated a one time award. Davidson CCJ dealt with this submission by reference to the structure of s65 and s66 and the use of the terms "loss", "thing" and "the loss of a thing", which I have already discussed. He expressed his view of the way Division 4 worked, for the purposes in hand, as follows: "Tt is the fact of that loss of use or impairment which gives rise to the right to compensation. In many cases, the one injury may be the source of more than the one loss of a thing. Multiple losses may occur at the one time, or may occur progressively at different times." He then went on to find that after the agreed payment of $4,800 for the 10% impairment of the worker's back she had suffered further impairment of it. After summarising the quite extensive evidence that dealt with this further impairment, which he found had happened on 8 March 1991, he concluded that the appropriate figure at that date for the impairment of the back was 30%. At that date the figures then in force produced a figure of $17,400 from which Davidson CCJ said the $4,800 already paid must be deducted. Thus he arrived at the sum he awarded, $12,600. This first ground of appeal came down to the question whether Davidson CCJ's view of the operation of Division 4, as expressed in the passage from his judgment I have quoted above, should be accepted. For my part, I have arrived at the same opinion as Davidson CCJ. In light of the various considerations mentioned in the course of discussing the structure of Division 4, and the effect of the terminology introduced into it, it seems to me that the result is as described by Davidson CCJ. A worker may suffer the permanent and partial loss of the efficient use of a shine as the result of an injury and later suffer a further permanent and partial loss of the remaining efficient use of that thing. The words of s66(1), in my opinion, in their context in the Division as a whole, entitle the worker in the present case to receive from the employer compensation for the successive cumulating permanent impairments to her back resulting from the same injury. Although the point does not appear explicitly in the notice of appeal, the employer also submitted that Davidson CCJ had no power to make awards as he did under s66 in respect of the left leg both at or above the knee and at or below the knee, under s66. No awards had been made previously in respect of any part of the left leg. However, it was submitted that there had in substance been an application for such an award or awards before Herkes CCJ and that he must have decided against the worker's claim or claims in that respect which, it was submitted must be a final end to any claim based on the injury of 27 July 1987. It is not clear to me whether there ever was a claim for any loss under s66 in regard to any part of the left leg litigated before Herkes CCJ. He referred to evidence given by the worker touching on problems with her left leg, but he did not in terms reject any claim relating to it. I do not think it is necessary to come 6 UNREPORTED JUDGMENTS to a conclusion on precisely what happened before Herkes CCJ in this respect, because the approach taken by Davidson CCJ did not depend upon the resolution of me question. As with the worker's back. Davidson CCJ found, on medical evidence entitling him to do so, that the worker had "got worse, so far as her left leg is concerned, since the surgery" of 8 March 1991. On this basis, adopting the same approach to Division 4 as he did in regard to the back, he concluded that the worker was entitled to an award for loss of efficient use of the left leg. On the basis of my earlier reasons for agreeing generally with Davidson CCJ's approach to the operation of Division 4, and on the facts as he found them in regard to the worker's left leg, my opinion is that he had power to make an award or awards for further losses under Division 4 resulting from the injury of 27 July 1987. SECOND GROUND OF APPEAL. The second ground of appeal raised the question whether Davidson CCJ should have assessed the amounts of the s66 awards upon the maximum percentage payable at 8 March 1991 (the date he found was that of the further impairment) or 27 July 1987, which was the date of injury, (less the $4,800, which she was paid in 1989). The percentages themselves are not in question, only the figures from which the percentages should be calculated. S66(3) provides that compensation payable under the section "is to be calculated by reference to the requisite percentage of the amount in force at the date of injury". In choosing instead of the date of injury the date of the arising of the further losses, Davidson CCJ appears to have overlooked this provision: see also Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318. The appeal in respect of the first award therefore needs to be upheld, and the award set aside, solely for the mechanical purpose of making an award calculated by reference to the ceiling figures at the date of injury. THIRD AND FOURTH GROUNDS. For the employer, it was further submitted that Davidson CCJ's s67 awards could not stand. It was submitted that the way in which s67 was written made it clear that awards made under it were once and for all awards made in respect of an injury, and that the terms of the section explicitly looked to future suffering. The only way the worker could get further compensation, it was submitted, was by reconsideration proceedings under s17(4) of the Compensation Court Act, a course which, although it was not subject to jurisdictional problems, the worker's advisers had not followed. Davidson CCJ's view however, was again to the effect that the lump sum for pain and suffering under s67 was referable to a loss under s66, and that if a further compensable loss occurred under s66 then it again became necessary for the court to consider whether the worker was entitled under s67 to a lump sum for pain and suffering from the further loss. As already indicated I agree with this understanding of s66 and s67. Davidson CCJ summed up the s67 position succinctly: "In the event that there is a future increased loss, as distinct from increased pain and suffering without loss, a further award is permissible". I agree with this and am of the view that there was material before Davidson CCJ which entitled him to conclude that there was increased pain and suffering from further losses entitling him to make the awards which he did under s67. FIFTH AND SIXTH GROUNDS. URJ LOURDES HOUSE HOSPITAL v WHEELER (Priestley J) 7 I am not clear that these grounds were pressed in the hearing of the appeal. If they were, my opinion, stated broadly, would be that they should fail because the findings they challenge were properly based on a view of the facts taken by Davidson CCJ with which I see no reason to interfere. Further, Clarke JA has dealt with the two grounds in his reasons, in a way with which I agree, which leads to the same conclusion. NEW GROUND OF APPEAL. A further matter was sought to be raised by the employer concerning the awards for losses at or above and below the left knee. At the time Davidson CCJ made these awards, he did so in accordance with an accepted practice (it was twice approved in this court) which was later held by the High Court in KB Hutcherson Pty Ltd v Correia (1995) 183 CLR 50 to be wrong. Before Davidson CCJ no point was taken and no attention directed to the possibility that the practice he followed was wrong. It seems to have been accepted as correct, and the evidence tendered and dealt with accordingly. The notice of appeal, filed 30 March 1994, made no reference to the point. KB Hutcherson was decided on 16 March 1995. If the court were setting aside awards of Davidson CCJ concerned with the condition of the left leg, so that either this court or the Compensation Court would have to decide whether awards should be made in respect of the left leg or any part of it, then that task would have to be carried out by reference to the evidence as it stood at the time the court was considering the matter and by reference to the law decided in Hutcherson. However, all that should happen in the present case, in my opinion, is that adjustment should be made to the amounts of the awards of Davidson CCJ caused by his taking the wrong base figure to work from in calculating the effect of his opinion on the substantive matters found by him in regard to the worker's back and left leg. In Baker v Crittenden (Court of Appeal, 17 July 1995, Mahoney, Priestley and Handley JJA, unreported) Mahoney JA referred to the basis of the High Court's decision in Hutcherson and added: "Tt 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 singly '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." (at 3 of his reasons) It seems to me to be at least a possibility that the present case is one in which, if the question of the degree of loss or losses in regard to the worker's left leg above and/or below the knee were allowed to be reopened, the kind of consideration Mahoney JA was foreshadowing in the above passage could have to be carefully examined. Since the case was not conducted with this particular possibility in mind, it is possible that not all relevant material for such a consideration is before the court. A related but different point is that the trial was conducted on the footing of the then existing practice, without any raising of the KB Hutcherson point, and without the evidence being directed, in the alternative, to what the position would be if that point succeeded. 8 UNREPORTED JUDGMENTS Additionally to these considerations, the cases in which the decision in KB. Hutcherson has been raised in this court by parties seeking to reopen awards made in accordance with the pre KB Hutcherson practice have produced a uniform approach on the court's part that it will only allow such a reopening when the court concludes it is necessary for the substance of the claim for compensation to be reheard. In such cases the further hearing must be conducted on the basis of the current evidence and law: relevant cases are Baker v Crittenden (already referred to); Australian Specialised Meat Products Pty Ltd v Turner (1995) 11 NSWLR 614, Ainsworth Nominees Pty Ltd v Crouch (Court of Appeal, 18 July 1995, Kirby ACJ, Mahoney AP, Sheller JA, unreported) and Royal North Shore Hospital v Sullivan (Court of Appeal, 15 March 1996, Sheller, Powell and Cole JJA, unreported) and other cases cited in those decisions. Consistently with this series of decisions, I do not think the appellant employer should be allowed to rely on the KB Hutcherson point at this stage of the proceedings. SEVENTH GROUND. This raises the same point, in regard to me s67 amounts awarded, as did the second ground in regard to the s66 amounts. I think it should be treated the same way. CONCLUSION. In my opinion, the appeal should be allowed to the extent necessary for adjustment of the actual amounts awarded under s66 and s67 as indicated m my reasons: subject to that, the appeal should otherwise be dismissed. I suggest that short minutes be brought in at 2 pm on the day of delivery of these reasons before a single judge of the court carrying these reasons into effect and containing the adjusted awards under s66 and s67. The one point on which the appellant succeeded took up very little time in the appeal. It seems to me that the appeal substantially failed and that it is appropriate that the appellant should pay the respondent's costs of the appeal. Clarke JA I agree with the orders proposed by Priestley JA and, generally, with his Honour's reasons. There are, however, some observations which I would wish to add. THE WORKER'S BACK The appellant's argument involves two stages. The first is that the worker's acceptance of the sum of $4,800 proffered by the appellant concluded an agreement whereby she accepted that sum in satisfaction of her claim under s66 in respect of the impairment of her back. The second is that this agreement was a complete answer to the worker's claim for compensation under s66 of the Workers Compensation Act 1987 (the Act) in respect of her back. I am prepared to assume for present purposes that there was an agreement between the parties as alleged by the appellant. The question then is whether that agreement precluded the worker from maintaining the claim in relation to the back. Although there is no express provision in the Act which supports the appellant's argument it is contended that the references to the severity of the matter and the agreement of the parties in Note (a) to the Table in Division 4 of Pt3 of the Act provide a clear indication that the legislative intention was that if the worker agreed to accept a particular sum in satisfaction of a claim under s66, and subsequently did accept that sum, his or her rights were finally determined and no further claim could be brought in respect of the impairment the subject of that agreement. URJ LOURDES HOUSE HOSPITAL v WHEELER (Clarke JA) 9 I would reject this argument. In the first place s272 provides that the Act should apply notwithstanding any contract to the contrary. A statutory provision to this effect has traditionally appeared in workers compensation legislation in this State and its obvious purpose is to protect workers from unwittingly giving away their rights. Notwithstanding, the section seems to me to indicate that, unless there is a clear statutory provision giving the force to an agreement for which the appellant argues no worker should be found to lose his or her rights to claim under s66 or s67 because of the existence of an agreement of the nature relied on in this case. Further, there is in fact a legislative provision, s66A, which provides for the registration of an agreement with the consequence that where an agreement is registered "the worker is not entitled to receive any additional compensation for that loss under an award of the Compensation Court". That section did not apply to claims under s66 or s67 until the passing of Act No 89 of 1995. Originally the section, which was introduced into the Act in 1989, related only to 'a loss which is an occupational disease'. Nonetheless, in expressly providing for the registration of agreements and for registered agreements to have binding effect, does not support the appellant's contention that an unregistered agreement has similar effect. In the second place awards of the Compensation Court are not final in the sense that, pursuant to s17(4) of the Compensation Court Act, the Court is invested with authority to reconsider any matter which has been dealt with by it. A consequence of an acceptance of the appellant's argument is that if the agreement had been reflected in an award it would have been open to the Court to reconsider it whilst, because it was not formalised in an award, the worker was debarred from securing any reconsideration. Such an extraordinary situation should, in my view, only be accepted if compelled by clear statutory language, which is absent from Division 3. In my view these two considerations reinforce the reasons given both by Priestley JA and Davidson CCJ and require that this Court reject the appellant's argument. I do, however, agree that the date of the injury is the correct date for the calculation of the amount awarded. LEFT LEG There was no award made under s66 in respect of the worker's left leg prior to the one under appeal. The appellant submitted that Herkes CCJ had considered, and rejected, a claim for compensation under s66 in respect of that leg. His Honour certainly mentioned the claim made by the worker that she had disability in the left leg but did not refer to it, either by way of acceptance or rejection, in his final observations. In my view the terms in which his Honour did refer to the claim indicate that his Honour accepted the thrust of what the worker said but did not understand that any claim under s66 had been made in respect of the left leg disability. In these circumstances no reason appears why the claim should not have been entertained by Davidson J. The appellant sought leave to advance in this Court an argument that his Honour erred in compensating the worker in respect of impairment below the knee and impairment above the knee, an approach held to be wrong by the High Court since Davidson CCJ dealt with the matter. Priestley JA has pointed to a line of authority in this court which tells firmly against an acceptance of the appellant's submissions in this regard and they should be rejected. THE S67 CLAIM 10 UNREPORTED JUDGMENTS Compensation may be awarded under s67 in respect of pain and suffering resulting from a loss or losses mentioned in the Table. There is no jurisdiction to award compensation for pain and suffering that does not arise as a consequence of a loss or losses mentioned in the Table. It follows that Herkes J, who found that the worker had suffered a loss under s66 in respect of her right leg, was, subject to s67(2), entitled to make an award under s67 in respect of the pain and suffering resulting from the loss constituted by that impairment (or loss of efficient use) of the right leg. Although the position with regard to the back impairment is not so clear I am prepared to assume that Herkes J accepted that there was a 10 per cent loss in respect of the back and that this acceptance entitled him also to make an award under s67 in respect of pain and suffering resulting from that impairment. Whether his Honour did make an award under s67 in respect of the back is not, however, clear. His Honour did not make any finding of impairment under s66 in respect of the left leg and, absent such a finding, could not award compensation under s67 in respect of pain and suffering flowing from an impairment of that leg. Again there is doubt whether his Honour purported to make such an award. The terms of his Honour's judgment are, unfortunately, somewhat delphic. He spoke of impairments to the back and both legs and yet awarded compensation under s66 in respect only of the right leg. He then made an award under s67 without identifying the losses or the pain and suffering which he was then compensating. The position is quite unsatisfactory and is not helped by reference to the application for determination which does not even mention s67. Whether an amended determination was filed I do not know. Certainly none has been furnished to the court although correspondence did pass between the parties. Davidson J was therefore confronted with the problem of identifying the subject of the s67 award. There were three possibilities. The award related to the losses flowing from the impairment to the back and both legs, to the back and right leg or simply to the right leg. Davidson J concluded that the last alternative was the correct one, for the reason that the only award Herkes J made under s66 related to the right leg impairment. This was a permissible view and, having regard to the uncertainties surrounding the matter, I am not prepared to dissent from it. In these circumstances the challenge to the amount of the award made by Davidson J based on the argument that the cumulative size of the awards must fail for the reason that there is nothing wrong with Davidson J's award. It may be that Herkes J's award was excessive but that has not been challenged in this appeal. Clearly the award under s67 could not have related to a loss in respect of the left leg for none had been found (or accepted). If the award made by Herkes J under s67 only related to the right leg loss (as Davidson J thought) then it was open to his Honour to make an award under s67 in respect of the back and the left leg. If, however, the award under s67 made by Herkes J covered the back impairment also the position is not so clear. However, even if that occurred it was open to Davidson J to act under s17(4) of the Compensation Court Act and to reconsider the award. Nothing said by Egan J in Fraser vy The Water Board (Compensation Court of New South Wales, 22 April 1993, unreported) would indicate that, in the circumstances of this case, the power to reconsider an award should not have been exercised. His Honour did not do that but his award should not be set aside unless the appellant establishes an error justifying that course or, perhaps, a miscarriage of justice. In my opinion the appellant has failed to establish that there has been any injustice or any error and the award should, URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 11 subject to the mechanical correction necessary to ensure that the loss is calculated as at the date of the injury, be allowed to stand. Powell JA Five questions have arisen for consideration in the present appeal from a Judgment delivered, and Award made, by Davidson CCJ in the Compensation Court on 2 March 1994. Those questions are: 1. whether, in the circumstances revealed by the material which is before the Court, it might be said that the amount of lump sum compensation to which the Respondent was entitled pursuant to the provisions of s66 of the Workers Compensation Act 1987 ("the Compensation Act') in respect of the loss of the efficient use of her back had been agreed between the Respondent and the Appellant? 2. if so, whether it was open to the Compensation Court to make an Award for a further amount of lump sum compensation under s66 of the Compensation Act because of the deterioration of the Respondent's back? 3. Whether it was open to the Compensation Court to make a further Award of compensation for pain and suffering under s67 of the Compensation Court in the absence of any application by the Respondent pursuant to the provisions of s17(4) of the Compensation Court Act 1984 ("the Court Act") for the reconsideration of the original Award awarding compensation for pain and suffering to the Respondent? 4. even if it were open to the Compensation Court to make further Awards of compensation, whether pursuant to the provisions of s66, or of s67, of the Compensation Act, whether Davidson CCJ erred when he calculated the amounts of compensation which he awarded by reference to the amounts in force in March 1991 and not those in force at the date of injury on 27 July 1987? 5. whether, the question not having been raised on the hearing before Davidson CCJ, the Appellant ought to be permitted to amend its Notice of Appeal so as to raise a further ground of appeal to the effect that Davidson CCJ erred in making awards for compensation for the loss of the efficient use of the Respondent's left leg above the knee and, as well, for the loss of the efficient use of her left leg below the knee, the decision of the High Court in KG Hutcherson Pty Ltd v Correia! which overruled the decision of this Court in J Odlin Shopfitting International Pty Ltd v Kaljanac? not having been delivered at the time of the hearing before Davidson CCJ or at the time of the filing of the Appellant's Notice of Appeal. Regrettably, the material which is before the Court is in a less than satisfactory form, so that the history which I am about to record is one in which I have less confidence than I would otherwise wish; however, it represents the best which I have been able to do with some rather unsatisfactory material. The Respondent, who is now aged 50 years, was by occupation an enrolled nurses aide who worked for the Appellant in that capacity for some 18 years until 27 July 1987 on which day she sustained an injury to her lower back while attempting to change bed sheets in the course of her duties at the hospital. As a result of that injury, the Respondent developed acute back pain in the lumbar area with pain radiating to the right buttock and thigh. After being treated by her local practitioner for a time the Respondent was referred to Dr Segelov in early November 1987. At the time, the Respondent was treated with 1. (1995) 183 CLR 50 2. (1993) 29 NSWLR 632 12 UNREPORTED JUDGMENTS physiotherapy and intermittent traction. Later, so it would seem, the Respondent complained of pain in her left leg. A CT scan taken at that time revealed a large lumbo sacral disc protrusion but, as the Respondent apparently told Dr Segelov that she felt that she was improving, Dr Segelov recommended further conservative treatment. On 4 November 1988, there was filed with the Workers Compensation Commissioners an Application for Compensation - given proceeding number 10984 of 1988 - in which the Respondent - who, as it would seem, had, until then, been paid weekly compensation on the basis that she was totally incapacitated, but who had been told that, thereafter, she was to be paid weekly compensation on the basis that she was only partly incapacitated - sought an award of weekly compensation, an award of lump sum compensation pursuant to s66 of the Compensation Act in respect of "permanent impairment of the back" and an award pursuant to s67 of the Act. That application appears later to have been transferred to the Compensation Court, where it was given proceeding number 2552 of 1989. The Respondent appears to have been seen again by Dr Segelov on 13 April 1989 at which time she complained of worsening pain in her right leg. However, as it would appear that Dr Segelov at least discussed with, if not recommended to, the Respondent surgical treatment, which treatment the Respondent was at that time not willing to undergo, the Respondent was returned to the care of her local medical practitioner. It would appear that, shortly thereafter, on 28 April 1989, there was a pre-trial conference before the Registrar, at which pre-trial conference the Respondent's then solicitor requested that the Applicant be referred to a medical panel pursuant to the provisions of s131 of the Compensation Act. It would further seem that, thereafter, the medical panel on 10 May 1989 certified that the Respondent had sustained a 10% permanent impairment of her back. It is agreed that, on 29 July 1989, the Appellant's insurer paid to the Respondent's then solicitor the sum of $4,800.00, that sum representing 10% of the amount in force on 27 July 1987 representing the maximum amount payable for permanent impairment of the back. On 13 September 1989, the Respondent's then solicitor wrote to the Appellant's then solicitors a letter which, omitting formal parts, is as follows: "We refer to previous correspondence and advise that our client has a 12% loss of efficient use of right leg and 5% loss of efficient use of the left leg arising from the injury sustained while employed with your client. We enclose for your information a copy of the report of Dr Taylor dated 18 August 1989. We hereby make a formal claim on our client's behalf under s66 and s67 of the Workers Compensation Act 1987 for the sum of 515,300 in respect of the above mentioned loss. We look forward to receiving a cheque drawn in favour of our client for $15,300 as soon as possible." On 11 October 1989, the Respondent's then solicitors wrote to the Appellant's present solicitors, a letter which, omitting formal parts, is as follows:- "RE: BEVERLEY WHEELER v LOURDES HOUSE HOSPITAL We refer to the above matter and enclose by way of service the following doctors' reports: i) Dr WC Taylor dated 18 August 1989. URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 13 We hereby make a formal claim on the basis of this report for 515,300 in respect of 12% loss of efficient use of our client's right leg and 5% loss of efficient use of her left leg. We note that $4,800 has already been paid to our client under S66 of the Act being for 10% loss of efficient use of our client's back. We will refer the leg disabilities to a Medical Panel if we hear no further from you within fourteen (14) days." Although no copy of the relevant certificate of the medical panel is before the Court, it is clear (see Appeal Book at 60) that, at some time prior to 9 March 1990, the Respondent was examined by a medical panel (see Appeal Book at 49, 60) and that the panel - seemingly using a form appropriate not to the Compensation Act but to the Workers Compensation Act 1926 - certified, at the least, that the Respondent had sustained a 15% loss of the efficient use of her right leg - whether or not the certificate also dealt with any loss by the Respondent of the efficient use of her left leg is anything but clear. Although the material which is before the Court does not contain a copy of any Amended Application for Determination by the Respondent, the probability is that such an Amended Application was filed, if not before, then on, 17 October 1990, when proceeding number 2552 of 1989 was listed for hearing before Herkes CCJ at Dubbo (see Appeal Book at 36). The probability further is that, in the Amended Application for Determination, the Respondent, in addition to seeking weekly compensation - her employment with the Appellant having been terminated on 24 January 1990 - sought lump sum compensation pursuant to s66 of the Compensation Act in respect of the efficient use of each leg, and compensation pursuant to s67 of the Compensation Act for pain and suffering caused by the permanent impairment to her back and for the loss of the efficient use of each of her legs. In the Judgment which he was to deliver on 26 November 1990, Herkes CCJ said (inter alia):- "Beverley June Wheeler, a 44 year old nurses aide, received an employment injury with the respondent on 27 July 1987. On that particular day the applicant whilst in the course of her employment was attempting to change bed sheets under an old and incontinent patient when she received an injury to her lower back. Since that time she has had continuing pain in the lower back which spread to the right leg and to a lesser extent to the left leg. The situation, however, is that now she says the left leg is, in her view, worse than the right. The left leg apparently became exacerbated when she was driving her manual motor car and went to put her left foot on the clutch. At that time she said there was an exacerbation of the symptoms. I turn now to the other claims made by this lady, that is, for a 10% permanent impairment of the back, which I understand has been paid to her by the respondent, and to a 15% loss of the efficient use of her right leg as certified by a medical panel. I propose to allow her that amount under s66. It is agreed between the parties that this lady, having received the 10% in relation to the back and the 15% for the leg, would, as it were, trigger the amount sufficient for an award under the provisions of s67. The applicant, as I said, struck me as a perfectly honest lady who is doing her best. She has and has had for a considerable time a great deal of pain. The accident in many ways has shattered her life. She is no longer able to do those things which she used to do and indeed she has problems at home even carrying out the duties within her unit where apparently she lives alone. Originally she 14 UNREPORTED JUDGMENTS said that her local doctor, Dr Beith, did not want her to be in the unit alone when he sent her home for bed-rest. She has improved to some extent since then but she still has difficulty driving her car. She has difficulty performing her normal duties. She has, as I have indicated, pain in the low back. She has pain in the right leg and she has pain in the left leg. It has been submitted by Mr Perry that I should not allow for the left leg problem for, it is said, that relates to the driving of the car. However, the applicant's evidence was that she did have some problem with the left leg prior to that event and that she had trouble driving her manual car with her left leg prior to that time. In all the circumstances there will be an award for the applicant in relation to 15% permanent loss of the efficient use of the right leg at or above the knee and in addition thereto there will be award of $18,000 in relation to a claim under s67." It should also be noted that, attached to the copy of his Honour's Judgment, which is in the appeal papers, is what appears to be a cover sheet - seemingly in a common form but with the details filled in by his Honour, or at his direction - which was in part as follows:- "TO THE RESEARCH OFFICER AND THE LIBRARIAN: PLEASE HEADNOTE WITH THE FOLLOWING KEYWORDS: (if insufficient space, please attach sheet) - Injury to Back, right and left leg. - s40 award - s66, s67, and interest PLEASE DO NOT CIRCULATE" It should be noted that the amount of $9,000.00 awarded by his Honour in respect of the Respondent's loss of the efficient use of the right leg represented 15% of the amount in force as at 27 July 1987 as the maximum amount payable in respect of the loss of the use of either leg at or above the knee, while the amount of $18,000.00 awarded by his Honour for pain and suffering represented 45% of the amount in force as at 27 July 1987 representing the maximum amount payable pursuant to s67 of the Compensation Act. It should further be noted that, despite the references in his Judgment to the pain in her left leg of which the Respondent had complained, Herkes CCJ made no award pursuant to s66 of the Compensation Act in respect of the loss by the Respondent of the efficient use of her left leg. Despite the matters to which I have just referred, when she was seen again by Dr Segelov on 14 January 1991, the Respondent complained of increased pain radiating to the left leg. The Respondent was then admitted to the Masonic Hospital at Ashfield where she underwent a repeat lumbar CT scan which revealed L4/5 and L5/S1 disc protrusion with acquired spinal canal stenosis for which surgical treatment was recommended. Thereafter, on 25 January 1991, a decompressive laminectomy was carried out to relieve the pressure caused by the hard disc protrusion at the L4/S level. Although the Respondent appears to have recovered satisfactorily from her operation, her pain did not settle down adequately, and she was readmitted to hospital on 28 February 1991 with further left leg pain. On this occasion, a CT scan disclosed a large right sided lumbo sacral disc protrusion, despite which the pain was on the left side. Accordingly, on 8 March 1991 a left lumbo sacral hemilaminectomy was performed and a further deep compression of a hard disc protrusion was carried out. URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 15 Although the Respondent's conditions appears to have improved for a time following surgery, by the latter part of 1992 her lower back symptoms had returned, since which time it would appear that her condition has gradually deteriorated. In September 1992 the Respondent was examined by Dr Bentivoglio, who expressed the view that the Respondent had lost 40% of the efficient use of her back and that, even if she were to undergo further operative treatment and obtained the optimal level of improvement, her loss would, at best, reduce to the order of 20% to 25% loss of the efficient use of her back. Dr Bentivoglio further expressed the view that the symptoms which the Respondent was experiencing in her lower limbs were not the result of impairment of her lower limbs per se, but were referred symptoms from the back, in consequence of which it was his view that the Respondent had lost only 5% to 10% loss of the efficient use of both of her lower limbs. On or about 9 October 1992 there was filed the Application for Determination which later came before Davidson CCJ. In that Application, which was given proceeding number CC 12305 of 1992, the nature of the Respondent's injury was described as "injury to back, right and left legs" (see Appeal Book at 2) and the particulars of compensation claimed were recorded as being:- "(b) lump sum - 30% in respect of permanent impairment of the back - $14,400.00. s67" (See Appeal Book at 3) The Answer (Appeal Book at 8) which was filed on behalf of the Appellant on 21 September 1993 was, in part, as follows:- "1. That the said Respondent wholly denies that it is liable to pay to the Applicant the compensation claimed, upon the following grounds: (a) that there has been no change of circumstances since the previous Award of the Court/Commission. (b) that the Applicant has not suffered any further permanent loss of the efficient use of back since being compensated for 10% permanent impairment of the back. (c) the Applicant has no claim pursuant to s67 of the Act as she has already been compensated pursuant to s67." In the period between October 1992 and January 1994, the Respondent was examined again by each of Dr Segelov and Dr Bentivoglio and, as well, was examined by Dr Johnston and Dr Bryan on behalf of the Appellant. In a report dated 21 October 1993 (Appeal Book at 31), Dr Segelov expressed the view that the Respondent had a permanent loss of function of her back of the order of 30% and had a 30% chance of requiring spinal fusion in the future, while she remained permanently unfit for lifting or repeated bending or prolonged standing or sitting. In a report dated 18 October 1993 (Appeal Book at 25-26) Dr Bentivoglio expressed the view that the Respondent had a permanent loss of function in her back in the order of 30%-40%, that she had a permanent loss of function in her left lower limb at or above the knee of 10%-15%, a permanent loss of function in her left lower limb below the knee in the order of 5%-10%, a permanent loss of function in her right lower limb at or above the knee of the order of 5%-10% and a permanent loss of function in her right lower limb below the knee of 5%. In a report dated 15 December 1993 (Appeal Book at 32-34), Dr Johnston expressed the view that the Respondent then had a 25%-30% loss of function of her back and that even with successful fusion that loss was unlikely to diminish. 16 UNREPORTED JUDGMENTS In a report dated 14 December 1993 (Appeal Book at 52-54), Dr Bryan expressed the view that the Respondent had no more than 30% permanent impairment of the lower back, no more than 10%-15% permanent loss of function in her left leg above the knee with no increase on that figure referable 5 to the whole of the left leg, permanent loss of function in the right leg at or above the knee of approximately 5%-10% but with no increase on that figure referable to the whole of the right leg. Although no copy of it appears in the material which is before the Court, it 10 would seem (Appeal Book at 56 R-V) that, at some time, there was filed on behalf of the Respondent, an Amended Application for Determination, in which Amended Application, the Respondent, in addition to the claim for further impairment to her back over and above "the 10% which had been agreed upon between the parties prior to the earlier hearing", also sought compensation for 15 what was claimed to be "15% permanent impairment of the left leg at or above the knee, and 10% permanent impairment of the left leg at or below the knee" as well as an award for pain and suffering in respect of the increased impairment of the back and in respect of the loss of the efficient use of the left leg. The Respondent's application appears to have come on for hearing on 21 January 1994 before Davidson J in Dubbo. The Transcript record of proceedings (Appeal Book at 11) commences:- "Discussion re status of matter. Mr Harrington sought to amend application for determination. Future course of 25 matter agreed to." The Transcript records that, after the Respondent's evidence in chief had been given, Davidson CCJ directed the Respondent to file an Amended Application within 7 days and then ordered that the hearing stand adjourned part-heard to 28 February 1994 in Sydney (Appeal Book at 15-16). 30 On 28 January 1994, there was filed what is intituled "Application for Determination" (Appeal Book at 5-7) but which, in his Judgment (Appeal Book at 56) Davidson CCJ described as an "Amended Application for Determination and Increase", in which Application (Appeal Book at 6) appears the following:- 35 4 Date and nature of injury: 27 July 1987 Whilst trying to change sheets under an old incontinent patient, the applicant received an injury to her lower back. 5 (a) Matter No in which award made (a) No 25S2 of 1989 (b) Amount of weekly payment: (b) $160.00 (c) Date from which it commenced: (c) 18 November 1988 6 Particulars of variation sought of weekly Increased - to $ pw as from to Award Judge Herkes payment: - amount is to be varied increase weekly payments 45 from 1 October 1990 to date. 7 Grounds upon which variation sought: | Medical and economic Although the Transcript (Appeal Book at 18-21) does not record the fact, Davidson CCJ in his Judgment (Appeal Book at 56), records that, on 28 February 50 1994, "(the Respondent's) claim for variation of the early (sic) award made by his Honour, Judge Herkes in matter No 2552/89, was withdrawn". URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 17 After the Respondent had been cross-examined, the only further evidence tendered on 28 February 1994 was the reports of Drs Segelov, Bentivoglio, Johnston and Bryan, the transcript of evidence before Herkes CCJ on 17 October 1990 in proceeding No 2552/89 and his Honour's Reasons for Judgment of 26 November 1990. As the Transcript record of proceedings does not record the submissions of counsel, one must ascertain, as best as one can, what were those submissions from what appears in Davidson CCJ's Judgment. His Honour's Judgment suggests to me that the submissions of Mr PL Perry, who then appeared for the Appellant, were to the following effect: 1. the Respondent was not entitled to a further award of compensation pursuant to s66 of the Compensation Act since:- (a) the application which was made in proceeding No 2552 of 1989 was, relevantly, an application for compensation pursuant to s66 of the Compensation Act in respect of the permanent impairment of the Respondent's back. (b) as part of the process of determining the amount of compensation to be awarded, the degree of permanent impairment had to be determined; (c) two methods of determination of that degree of impairment, and of the appropriate amount of compensation, were provided for by the Compensation Act, they being, either, an agreement between the parties, or, a determination by the Court; (d) in the event, it was clear that the parties had agreed to accept as correct the assessment by the Medical Tribunal of the degree of impairment; (e) the right to claim compensation pursuant to s66 in respect of the permanent impairment of the back was thus subsumed in the agreement, which was carried into effect by the payment of the appropriate amount of compensation; (f) the degree of impairment and the amount of compensation having been determined by agreement, and not by Award, it was not open to the Court to exercise the powers conferred on it by s17(4) of the Court Act. 2. it was not open to the Respondent to seek a further award pursuant to s67 of the Compensation Act in respect of the pain and suffering resulting from the permanent impairment of her back and the loss of the efficient use of her legs - or at least of her right leg - since:- (a) it was clear that in proceeding No 2552 of 1990 the Respondent claimed that she had suffered a permanent impairment of her back and a loss of the efficient use of each leg, and, further, gave oral evidence directed to each of those matters. (b) the Judgment of Herkes CCJ made it clear that had it not been for the loss of the efficient use of at least her right leg, the Respondent would not have been entitled to any award of compensation for pain and suffering pursuant to s67 of the Compensation Act for the appropriate threshold provided for by s67(2) would not have been crossed. (c) further, although Herkes CCJ made no Award pursuant to s66 of the Compensation Act in respect of the Respondent's loss of the efficient use of her left leg, it is clear that his Honour took into account the pain of which the Respondent complained in respect of her left leg when he came to assess compensation for pain and suffering pursuant to s67 - the sum awarded represented 45% of the amount in force as at 27 July 1987 as representing "a most extreme case"; 18 UNREPORTED JUDGMENTS (d) as compensation pursuant to s67 is payable in respect of past, present and future pain and suffering (s67(7) of the Compensation Act) the Respondent's right to claim compensation for pain and suffering suffered after November 1990 when Herkes CCJ made his Award was subsumed in the Award so that no further Award could be made unless the Award made by Herkes CCJ was reviewed pursuant to s17(4) of the Court Act; These submissions did not find favour with Davidson CCJ whose Award (Appeal Book at 68) in favour of the Respondent was, relevantly, as follows:- "1. That the respondent pay the applicant, as lump sum compensation under 66, $7,256.30 in respect of 10% loss of use of the applicant's leg at or above the knee, $3,386.25 in respect of 5% loss of use of the applicant's left leg below the knee and $17,415 in respect of 30% permanent impairment of the applicant's back. 2. That credit be given to the respondent for the sum of $4,800 already paid with respect to permanent impairment of the applicant's back. 3. That the respondent pay the applicant, as lump sum compensation under s67, $20,000 in respect of pain and suffering; such lump sum to be apportioned as to 510,000 in respect of past pain and suffering and as to $10,000 in respect of future pain and suffering. 4. That credit be given to the respondent for any payment made with respect to the lump sum compensation awarded herein under s67. 5. That the respondent pay the applicant interest on the lump sum compensation awarded herein under s66 at the rate of 11.5% per annum from 8th March 1991 to 2nd March 1994 and on $10,000 of the lump sum compensation awarded herein under s67 at the rate of 5.75% per annum from 8th March 1991 to 2nd March 1994. 6. That the respondent pay the applicant's s60 expenses." Four things should be noted about this Award, they being:- 1. despite the fact that Davidson CCJ did not have before him any application to review, in any respect, the Award made by Herkes CCJ, the Award, insofar as it deals with the permanent impairment of the Respondent's back and the claim by the Respondent for compensation for pain and suffering effectively represents an Award discharging the original Award and substituting a fresh Award in those respects; 2. in accordance with the decision of this Court in J Odlin Shopfitting International Pty Ltd v Kaljanac3, there were separate Awards for compensation pursuant to s66 of the Compensation Act in respect of the loss of the efficient use of the Respondent's left leg at or above the knee, and the loss of the efficient use of the Applicant's left leg below the knee. 3. the figures by reference to which Davidson CCJ calculated the amounts of compensation payable in respect of the loss of the efficient use of the Respondent's left leg and the permanent impairment of the Respondent's back were the figures in force in March 1991 and not those in force as at 27 July 1987, as also was the figure by reference to which the amount of compensation payable in respect of pain and suffering was calculated; 4. although the amount calculated by Herkes CCJ for pain and suffering represented 45% of the amount payable for "a most extreme case" as at 27 July 1987, the amount allowed by Davidson CCJ for pain and suffering represented only 41.3% of the amount payable for "'a most extreme case" in March 1991, 3. supra URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 19 despite the fact that his Honour had accepted that the permanent impairment of the Respondent's back was 30% rather than 10% as certified in 1990, and, in addition, had made an Award in respect of the Respondent's loss of the efficient use of her left leg, whereas, Herkes CCJ had not; In its Notice of Appeal, the Appellant sought to raise the following grounds of appeal:- "1. His Honour erred in holding that the respondent was entitled to a further sum pursuant to s66 in respect of the impairment of her back, she having previously agreed with the appellant to accept a sum equal to 10 per cent of the maximum percentage payable as at the date of her injury. 2. His Honour erred in assessing an award for the respondent worker based upon the maximum percentage payable as at 8 March 1991 rather than 27 July 1987, which was the date upon which the respondent worker suffered injury. 3. His Honour erred in allowing the respondent worker an award under s67, she having already received an award under that section from the Court (his Honour Judge Herkes) on 26 November 1990. 4. His Honour erred in holding the respondent worker entitled to on award under s67, in the absence of an application for reconsideration of her earlier award. 5. His Honour erred in allowing the respondent worker an award under s67 in the sum of $20,00.00 in addition to the earlier award of $18,000.00 when the maximum amount of compensation, payable only in a most extreme case, was $40,000.00 as at the date of injury. 6. His Honour erred in allowing the respondent worker an award which, when added to her previous award, amounted to thirty-eight fortieths of the maximum payable, in the absence of a finding that such a sum was reasonably proportionate to that maximum amount (s67(3)). 7. His Honour erred, in calculating the respondent worker's entitlement under s67, in having regard to the maximum amount available as at 8 March 1991, rather than 27 July 1987, the date of injury. 8. As at the date of the filing of this Notice of Appeal, a certified copy of his Honour's reasons for Judgment is not available. The appellant wishes to reserve any right to vary or add to the grounds herein, when such a certified copy becomes available." and sought, in lieu, the following Orders:- "1. That the appeal be allowed. 2. That his Honour's award be set aside. 3. That this Honourable Court allow the respondent worker an award pursuant to s66 in the sum of $6,000 in respect of 10 per cent loss of efficient use of the left leg at or above the knee, as at the date of injury, 27 July 1987. 4. That this Honourable Court allow the respondent worker on award pursuant to s66 of the sum of $5,600.00 in respect of 10 per cent loss of the efficient use of the left leg below the knee, as at the date of injury, 27 July 1987." As will be apparent, the Appellant did not seek to challenge the Respondent's right to claim compensation in respect of her left leg, albeit that it was sought to have that compensation calculated in respect of the amounts in force as at the date of the injury, and the Appellant did not seek to challenge the manner in which his Honour provided for interest on the compensation awarded. 20 UNREPORTED JUDGMENTS In the written submissions which were filed on behalf of the Appellant following the delivery by the High Court of its Judgment in KB Hutcherson Pty Ltd v Correia+, the Appellant sought leave to raise a fresh ground of appeal based upon that Judgment and sought in lieu of O3 and O4 originally sought, Orders:- "3. That this Court substitute a finding according to law. 4. Alternatively, that the matter be remitted to the Compensation Court for further findings and orders in accordance with law." Before turning to consider the questions which fall for determination on the hearing of this appeal, it is convenient that I set out the relevant provisions of the Compensation Act and of the Court Act. COMPENSATION ACT "DIVISION 4 - Compensation for non-economic loss 65. (1) In this Division - 'loss', in relation to a thing, means - (a) the loss of that thing; or (b) the permanent loss of the use, or of the efficient use, of that thing. (2) In this Division, a reference to a loss mentioned in the Table to this Division includes a reference to - (a) the permanent impairment of the back, neck or pelvis or any other permanent impairment added to the Table; 66. (1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $80,000 set out opposite to that loss in that Table. (2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the some injury is not entitled to receive as compensation under this section more than 580,000 in respect of those losses. (3) Where by the operation of Division 6 the amount of $80,000 is adjusted, the compensation payable under this section shall be calculated by reference to the requisite percentage of the amount in force at the date of injury. 67 (1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $40,000. (2) This section does not apply if the compensation paid or payable under s66 for the loss or all those losses is less than 10 per cent of maximum amount from time to time referred to in that section. (3) The maximum amount of compensation under this section is 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 degree and duration of pain and suffering and the severity of the loss or losses. (4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by a commissionet........... (6) Where by the operation of Division 6 the amount of $40,000 is adjusted, the compensation payable under this section shall be calculated by reference to the amount in force at the date of injury. (7) In this section - 'pain and suffering' means - 4. supra URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 21 (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. 68 (1) If a loss suffered by a worker consists of the loss of a proportion (but 5 not all) of a thing mentioned in the Table to this Division, a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under s66. (3) The amount of compensation payable in any particular case shall, in default 10 of agreement, be determined by a commissioner. 71. (1) If - (a) compensation has been paid under this Division (or s16 of the former Act) for a loss being - 15 (i) the loss of a proportion (but not all) of a thing; and (ii) an occupational disease; and (b) the worker suffers a further loss of that thing, compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable. 20 (2) Any such further losses may be taken into account for the purpose of determining whether compensation is payable for pain and suffering because of the operation of s67(2). (3) In this section - "occupational disease' means - (a) loss of hearing due to boilermaker's deafness or any deafness of a similar origin; (b) total or partial loss of sight which is of gradual onset; or (c) any disease which is of such a nature as to be contracted by a gradual 309 Process. 72. (4) A commissioner or the Compensation Court shall, at the request of a person claiming to be entitled to compensation for any of the following losses or impairments, refer to a medical panel for determination the question of whether 35 the loss or impairment exists and, if so, the nature and extent of the loss or impairment: (a) the loss of the sense of taste or smell; (b) the loss of sexual organs; (c) the incurable loss of mental powers involving a total inability to work; 40 (d) the permanent impairment of the back, neck or pelvis; (e) any loss or impairment added to the Table of this Division by the regulations. TABLE COMPENSATION FOR PERMANENT INJURIES Nature of Injury Percentage of maximum amount payable Leg Injuries - 50 Loss of either leg at or above the knee. 75 Loss of either leg below the knee 70 22 UNREPORTED JUDGMENTS Permanent impairment of back, neck pelvis - Permanent impairment of the back 0-60 NOTES: (a) Where a range of percentages is provided by the Table, the maximum percentage is payable only in a most extreme case and the percentage payable in any other case shall be reasonably proportionate to that maximum percentage having regard to the severity of the matter. The amount payable in any particular case shall, in default of agreement, be determined in accordance with this Act by a commissioner. (g) In the case of the impairment of the back, neck or pelvis, compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned and as if any impairment existing before that injury did not exist. Although, for the reasons to which I shall shortly refer, it does not affect the answer to the fourth of the questions to which I have earlier referred, it is perhaps as well to record that Schedule 2 - Amendment of Workers Compensation Act 1987 Relating to Increased Benefits, and Schedule 3 - Amendment of Workers Compensation Act 1987 Relating to Indexation etc of Amounts of Benefits, of the Workers Compensation (Benefits) Amendment Act 1989 amended s65, s66 and s67 of the Compensation Act in the following respects:- 1. by inserting in s65 a new subsection reading as follows:- "(3) If a loss mentioned in the Table of this Division resulted both from an injury received before the adjustment of an amount mentioned in s66 or s67 and an injury received after that adjustment, the loss shall, for the purposes of those sections, be treated as having resulted from the injury received after that adjustment." 2.(a) by substituting in s66(1) the sum of $87,350.00 for the sum of $80,000.00; (b) by substituting in s66(2) the sum of $106,300.00 for the sum of $80,000.00; (c) by substituting for the existing subs3 a new subs3 reading as follows: "(3) If an amount mentioned in this section at any time after the commencement of this Act: (a) is adjusted by the operation of Division 6; or (b) is adjusted by an amendment of this section, the compensation payable under this section is to be calculated by reference to the requisite percentage of the amount in force at the date of injury. " 3. (a) by substituting in s67(1) the sum of $43,700.00 for the sum of $40,000.00; (b) by substituting for the words "that section" appearing in s67(2) the word and figures "s66(1)"; and (c) by substituting for the existing subs6 a new subsection reading as follows:- "(6) If an amount mentioned in this section at any time after the commencement of this Act: (a) is adjusted by the operation of Division 6; or URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 23 (b) is adjusted by an amendment of this section, the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury." COURT ACT "17.(3) Subject to Pt4 of this Act, a decision or proceeding of the Court shall not: (a) be vitiated by reason of any informality or want of form; or (b) be liable to be challenged, appealed against, reviewed, quashed or called in question by any court. (4) Nothing in subs(3) shall prevent the Court from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision previously made or given by the Court, all of which the Court shall have authority to do." Pt27 r2 of the Compensation Court Rules 1990 provides that an application for the exercise by the Court of any of its powers under s17(4) of the Court Act shall be made by a motion on notice in the proceedings and shall be supported by an affidavit or affidavits containing and verifying (inter alia) the award the subject of the application, the extent to which it has been carried into effect, the respects in which it is sought to be rescinded, altered, amended or reconsidered, the terms of the award sought to be substituted and the grounds upon which the application is made. WAS COMPENSATION UNDER S66 AGREED? COULD THE COURT AWARD FURTHER COMPENSATION UNDER S66? Although, as will be apparent from what I have earlier recorded, there was no formal written agreement between the Appellant and the Respondent as to the degree of permanent impairment to the Respondent's back and as to the amount payable by way of compensation to the Respondent in respect of that degree of impairment, what I have written will, I believe, make it clear, both, that, prior to October 1990, when matter No 2552 of 1989 came before Herkes CCJ, the Appellant and the Respondent were agreed that the certificate of the medical panel as to the extent of the permanent impairment to the Respondent's back would be accepted and that the amount of compensation to which the Respondent was then entitled until s66 of the Compensation Act was to be calculated by reference to that certificate, and, that that agreement had been carried into effect by the payment of the appropriate amount of compensation. This notwithstanding, the Respondent has sought to submit that it was open to the Compensation Court, in the further application which she brought, to make an award of further compensation, the basis for that submission, as I understood it, being that, after the making of the agreement, the Respondent's back condition and the condition of her left leg had worsened, and that the deterioration in the Respondent's condition gave rise to a further impairment which further impairment in its turn, gave rise to a further right to compensation. With respect, I am unable to accept the correctness of the Respondent's submission for the following reasons:- 1. the right conferred upon the Respondent by s66(1) of the Compensation Act was, relevantly, a right to receive compensation for "the permanent impairment of (her) back"; 2. the amount payable to the Respondent in respect of the permanent impairment of her back was an amount to be determined by reference to the degree of permanent impairment; 24 UNREPORTED JUDGMENTS 3. the extent of that impairment and, thus, the amount of compensation payable, was to be determined, either, by agreement between the parties, or, by a Commissioner or the Court in the absence of agreement; 4. once an amount had been agreed upon between the parties and paid by the Appellant to the Respondent, the right which the Respondent had had to claim compensation was subsumed in the agreement which had been fulfilled; 5. while, if the amount had been determined by a Commissioner or the Court incorporated in an Award, it would, if the case had otherwise been appropriate, have been open to the Court, upon an application for reconsideration, to set aside the original award and substitute an increased award (see, for example, Fraser v Water Boards) it was not open to the Court, in the present case, to do so, first, since the degree of permanent impairment and the amount of compensation payable in respect of it had been determined by agreement, and, second, since there had been no application to the Court pursuant to the provisions of s17(4) of the Compensation Court in any event. In expressing the views which I have just recorded, I have not overlooked the decision of the then Chief Judge of the Compensation Court in Staker v North Broken Hill Pty Ltd® which, at first sight, seems to suggest that a further Award may be made notwithstanding an agreement as to compensation payable pursuant to s66 and s2.67 of the Act. While it may be that the decision to which McGrath CJ came would, since the delivery of Judgment by the Court in KB Hutcherson v Correia', no longer be open, it seems to me that, given what appears then to have been the approach commonly taken to the losses set out in the Table, that decision is explicable and does not run counter to the views which I have set out above. Although the Statement of Facts in the Judgment of McGrath CJ is very short, it would appear that the worker sustained an employment injury to his left ankle and that a medical panel assessed a 50% loss of the efficient use of the lower limb by reason of that injury. Thereafter, so it would seem, by a written agreement, the worker settled his claim under s66 and s67 of the Compensation Act. The worker later suffered a deterioration in the condition of his left leg which deterioration included pain at the knee and the left hip, that pain, as best as I can judge it, being consequential upon the injury to the ankle. The worker again submitted to a medical panel which on this occasion found a 75% loss of the use of the left leg. The employer conceded that the worker was entitled to a further payment for the s66 loss, but argued that he was not entitled to any further sum for pain and suffering because the agreement had covered all his entitlements under the section. Given the employer's concession in that regard, it is hardly surprising that McGrath CJ made an Award pursuant to s66 of the Compensation Act nor - since his Honour held that, upon its proper construction, the written agreement between the worker and the employer, insofar as it related to the claim under s67 was limited to the claim for pain and suffering flowing from the ankle injury which the worker had sustained - is it surprising that his Honour made an Award pursuant to s67 in respect of the further s66 loss. A FURTHER AWARD FOR PAIN AND SUFFERING. The right conferred upon a worker by s67 of the Compensation Act is a right to receive from the worker's employer "compensation for pain and suffering resulting from the loss or... losses" which it is found that he has suffered, the 5. (1993) 9 NSWCCR 263 6. (1992) 8 NSWCCR 332 7. supra URJ LOURDES HOUSE HOSPITAL v WHEELER (Powell JA) 25 amount of which compensation is to be determined either by agreement between the parties or by the Court. In the event of the amount of compensation being decided by the Court and embodied in an Award, the right conferred by s67 is subsumed in the Award so that, unless, and until, the Award is set aside, that right is not longer available to a worker to found an application for compensation. The passage from his Honour's Judgment which I have set out above would seem to indicate that, in coming to the conclusion which he did in relation to the Respondent's claim for compensation for pain and suffering, Herkes CCJ did have regard to the pain in her left leg of which the Respondent then complained - that pain, so the decision of this Court in Department of Public Works v Morrow' would seem to indicate, since it caused the reduced use of the leg, would itself constitute a loss of the efficient use of the leg within the meaning of the Act. But even if this not be so, it is clear that, in coming to his conclusion as to the amount proper to be awarded for pain and suffering Herkes CCJ had regard to the pain derived from the impairment to the Respondent's back and the loss of the efficient use of her right leg. This being so it follows that, his Honour's Award not having been set aside, it was not open to Davidson CCJ to make an Award for further compensation pursuant to s67 at least in relation to the pain and suffering resulting from the impairment to the loss of the efficient use of the right leg even if - upon the assumption that Herkes CCJ did not have regard to pain and suffering resulting the loss of the efficient use of the left leg - it were open to him to make an Award for pain and suffering in respect of pain and suffering resulting from the loss of the efficient use of the left leg. THE DATE FOR CALCULATING COMPENSATION. It is, I believe, clear enough that, in calculating the amounts of compensation to be awarded by his reference to the amounts in force as at March 1991, Davidson CCJ erred, as the relevant amounts were the amounts in force as at 27 July 1987. The reasons why that is so are as follows:- 1. the provisions of s66(3) and of s67(6) of the Compensation Act, when originally enacted, make it clear that the figures by reference to which any compensation which was payable was to be calculated were those in force at the date of the relevant injury; 2. the general rule of the common law, so Sir Owen Dixon said in Maxwell v Murphy?, is that a statute changing the law ought not, unless that intention be made clear with reasonable certainty, to be understood as applying to facts, or events, that have already occurred in such a way as to confer, or impose, or otherwise affect, rights, or liabilities, which the law had defined by reference to past events; 3. that that rule was applicable to statutes such as the Compensation Act is made clear by the Judgment of the High Court in Kraljevich v Lake View and Star Ltd10; 4. finally, the decision of this Court in Bresmac Pty Ltd ats Star!! makes it clear that, notwithstanding the amendments which were made to the Compensation Act by the Workers Compensation (Benefits) Amendment Act 1989, with the exception of workers injured between 30 June 1989 and 5 September 1989, the relevant amounts for calculation of compensation are those in force as at the date of the worker's injury. 8. (1986) 5 NSWLR 166 9. (1957) 96 CLR 261, 267 10. (1945) 70 CLR 647 11. (1992) 29 NSWLR 318 26 UNREPORTED JUDGMENTS AMENDMENT OF THE NOTICE OF APPEAL Although it is well enough established that, as a general rule, an unsuccessful party cannot seek to have a verdict, based on an accepted state of the law, set aside and a new trial ordered on the ground that the law is later held to be different from what it was at the date of the trial (see, for example, Eggins v Brooms Head Bowling and Recreational Club Ltd!2), in a case where the law has been reformulated after a trial, an unsuccessful party may seek to have the reformulated law applied on an appeal provided there is no prejudice to the parties in applying the reformulated law having regard to the state of the pleadings and the findings of fact made at the trial (Western Suburbs Hospital v Currie!3). In the present case as it seems to me, the additional ground of appeal sought to be raised involves a pure question of law based upon the material tendered at first instance. I would therefore be prepared to allow the ground to be relied upon by the Appellant, the consequence being that Davidson CCJ ought to be held to have erred in making two Awards of compensation in respect of the Respondent's loss of the efficient use of her left leg. The result of concluding that Davidson CCJ erred in this respect, coupled with the effect of the conclusion that his Honour applied the wrong figures in calculating the amount of compensation, are, first, that the amount of compensation to be allowed in respect of the loss of use of the Applicant's left leg is, not $10,642.55 ($7,256.30 plus $3,386.25) but $6,000.00 (80,000 x 75/100 x 10/100) and, second, that, if the claim for pain and suffering is to be based solely on the claim for pain and suffering resulting from loss of the efficient use of the left leg, that claim must fail, as the threshold provided for in s67(2) of the Compensation Act would not be crossed. CONCLUSIONS In the light of what I have written above, I have concluded that the appeal should be upheld, the Award made by Davidson CCJ set aside and in lieu thereof there be made in favour of the Respondent an Award pursuant to the provisions of s66 in respect of the loss of efficient use of the Respondent's left leg at or above the knee, such award to carry interest at the rate of 11.5% from 27 July 1987 to 2 March 1994, Although the Appellant has succeeded on the appeal, the greater part of its success has depended upon the point not taken below but allowed on the appeal, and the Respondent has, in any event, retained an Award in her favour in respect of the loss of the efficient use of her left leg. This being so, it seems to me, that the appropriate orders for costs are that the Appellant pay the Respondent's costs of the trial, and that the Respondent pay one-half of the Appellant's costs of the appeal but, if qualified, to have a certificate under the Suitors' Fund Act 1951. Appeal allowed in part, otherwise dismissed. Counsel for the Appellant: J Poulos QC Solicitors for the Appellant: Abbott Tout Counsel for the Respondent: JD Cummins QC; RE Dubler Solicitors for the Respondent: Baker - Solicitors (Dubbo) 12. (1984) 5 NSWLR 521 13. (1987) 9 NSWLR S511