ALPHA HEALTH CARE TRADING AS EDMUND'S PRIVATE HOSPITAL v DAWSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MAHONEY P and WADDELL AJA 18 April 1996, 18 April 1996 [1996] NSWCA 12 Workers Compensation — assessment and amount of Compensation WORKERS COMPENSATION The appeal involved a challenge to one aspect of an award under s66 of the Workers Compensation Act 1987 - HELD - On the evidence the challenge was not made good. No question of principle was involved. ORDERS Appeal dismissed with costs. Gleeson CJ This is an appeal from a decision of his Honour Judge Burke in the Compensation Court given on | February 1995. Although a number of grounds of appeal were originally raised, the issues have been substantially narrowed in the way in which the case has been presented by senior counsel for the appellant. The only challenge to the findings that is now made is a challenge to the finding, on page 8 of his Honour's reasons for judgment, that the worker suffered at the time of the hearing a 25 per cent permanent loss of efficient use of her left leg. The only aspect of the award that is challenged is the award of a lump sum, pursuant to s66, in respect of permanent loss of the efficient use of the left leg at or above the knee, in the amount of $18,506.25. I do not intend to repeat what appears in the reasons for judgment of his Honour Burke CCJ. Those reasons will be available to be read together with the judgment of this Court. The portion of the reasons for judgment that is under challenge in this appeal is so much of the reasons as relates to the worker's left leg, and as appears from the top of page 6 to the middle of page 7 in his Honour's reasons. In substance, there are two criticisms that are made. First, it is submitted that his Honour was in error in finding on the evidence before him that there was a permanent loss of the efficient use of the worker's left leg. Second, it is submitted that, in any event, the percentage of 25 per cent assigned by his Honour in that respect was excessive. The evidence concerning the respondent's left leg took the form of oral evidence from the respondent and evidence in various medical reports. The relevant oral evidence of the respondent is to be found in particular at 20 and 32-33 of the appeal book. The relevant medical evidence has been conveniently set out in para4.3 of the written submissions of the appellant. To that evidence, however, there should be added references to page 50 of the appeal book at lines B to E and at 56 of the appeal book at lines H to I. Further, and importantly, there should be added a reference to the report of Dr Sears, which is set out at 68 of the appeal book. The particular passages that I have in mind are at lines H, J and S of page 68 of the appeal book. As the reference made by his Honour to the decision in Department of Public Works v Morrow (1986) S NSWLR 166 makes clear, his Honour was looking at this as a case in which there was an interrelationship between the back pain 2 UNREPORTED JUDGMENTS resulting from the permanent injury to the respondent's back and the loss of the use of her left leg, of which she complained and to which various medical reports made reference. The respondent complained that she had suffered, and up until the time of the hearing was continuing to suffer, pain and discomfort in her left leg and loss of its use, and part of her complaint in that respect was related to the fact that activity, if I can use that neutral expression, involving her left leg resulted, by reason of her back condition, in back pain. Having regard to the evidence to which I have referred, I am of the view that neither of the criticisms addressed to his Honour's reasons for judgment has been made good and no error has been demonstrated in his findings or award in relation to the matter of the respondent's left leg. For those reasons I would propose that the appeal should be dismissed with costs. Mahoney P I agree. Waddell AJA I agree. GLEESON CJ: The order of the court will be as I proposed. Appeal dismissed with costs. Counsel for the appellant: IG Harrison SC Solicitors for the appellant: PV McCulloch and Buggy Counsel for the respondent: PW Webb QC / PM O'Rourke Solicitors for the respondent: White Barnes