RMAX PTY LTD v DA SILVA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, MEAGHER and POWELL JJA 19 April 1996, 29 November 1996 [1996] NSWCA 451 Workers Compensation — Assessment — Characterisation of "loss" — Appeal by employer Workers Compensation Act 1987, s65, s66. Worker injures right hand necessitating amputation of middle finger — Consequences of amputation regarding efficient use of right hand — Characterisation of "loss" — Assessment of compensation based on relevant loss Held: appeal dismissed. There was no error, in fact or in law, in the judge's determination of the relevant loss for the purposes of the Workers Compensation Act 1987. Department of Public Works v Morrow (1986) 5 NSWLR 166; applied. ORDERS Appeal dismissed with costs. Mahoney P As Mr Wardell for the appellant has submitted, this appeal raises a minor but important issue which may affect the application of s66 of the Workers Compensation Act 1987 in a number of cases. The basic facts are not significantly in dispute. On 27 August 1993 the respondent worker Mr Da Silva suffered an injury to his right (dominant) hand when it was jammed in a machine. He was taken to Fairfield Hospital and the treating orthopaedic specialist Dr Powell surgically effected the amputation of the middle finger and the distal interphalangeal joint, being the first joint of the finger. The effect of the amputation extended beyond the mere amputation. The worker continued to experience sensitivity at the site of the amputation to a significant extent. He finds his grip is adversely affected, he has difficulty doing domestic tasks such as washing and ironing and he has problems manipulating small items in the course of his work. His grip is weak and he is unable to bring the injured finger into the palm of his hand. The learned judge accepted the worker's complaints of difficulty in gripping and difficulty in manipulating small items as the result of the amputation. There was medical evidence as to the consequences of the amputation. As his Honour recorded, Dr McKessar, called for the worker, assessed the loss of function of the right middle finger at 55 per cent and equated this to 8 per cent loss of the efficient use of the hand. Another doctor, Dr Conrad, assessed a 60 per cent loss of the right middle finger and a 35 per cent loss of the right hand. The learned trial judge concluded that the operating surgeon's evidence suggested a loss of "30 per cent... of the efficient use of the right arm at or above the elbow". This was questioned in argument: it seems likely that the report intended to refer to a 30 per cent loss of the efficient use of the right hand. However this be, the basic facts were, as I have said, clear. It was for the Court to determine the effect of them for the purposes of the Act. 2 UNREPORTED JUDGMENTS Bishop CCJ held: "On balance I think the appropriate assessment that should be made under s66 for the loss of the efficient use of the right hand is 20 per cent." The appellant employer has submitted that this is a wrong characterisation of the loss. It has submitted that the loss is a loss only of the right middle finger and the relevant portion of it. In Department of Public Works v Morrow (1986) 5 NSWLR 166, this Court considered the meaning of "loss" in the Workers Compensation Act 1926, s 16(5). The observations there made by McHugh JA, with whose judgment the other members of the Court agreed, may be applied mutatis mutandis in considering the operation of s65 and s66 of the 1987 Act. In s65(1) "loss" is defined as either the loss of the thing in question or the permanent loss of the use or the efficient use of that thing. The judge, in my opinion correctly, concentrated upon the loss of the efficient use of the thing which was in question. Essentially his task was to determine what was "the thing" in question. In Morrow's case, the Court held there could be a loss of the efficient use of a thing where that loss was caused by pain resulting from an injury to another part of the body and in-that other part of the body. In the present case, as in effect the trial judge held, the pain which the loss of the joint had caused in the middle finger resulted in the loss of the efficient use of the hand and to the extent to which the judge referred. In the circumstances of the present case, that degree of loss of the use of the right hand could be identified as caused by the injury. Therefore, it was that which was relevant for the purposes of the legislation. No issue arises as to the percentage of loss determined by the judge. I see no error, in fact or in law, in what the judge did. Notwithstanding Mr Wardell's submissions, I am of opinion that the judge's decision was correct. The appeal should be dismissed with costs. Meagher JA I agree with Mahoney P. Powell JA I agree with Mahoney P. Appeal dismissed with costs. Counsel for the appellant: TM Wardell Solicitors for the appellant: PW Turk and Associates Counsel for the respondent: DJ Cutler Solicitors for the respondent: Kencalo and Rimes