ROYAL NORTH SHORE HOSPITAL v SULLIVAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and COLE, JJA 7 March, 15 March 1996 [1996] NSWCA 458 CONSIDERATIONS in determining amounts payable under s66 and s67 Worker's Compensation Act — approach of an appellate court to s66 and s67 findings. Sheller JA I agree with Cole JA. Powell JA I agree with Cole JA. Cole JA On 14 February 1994 Manser CCJ awarded the respondent Joy Elizabeth Sullivan $25,020 compensation pursuant to s66 Worker's Compensation Act 1987 in respect of permanent impairment of her back, compensation for 5% of permanent loss of efficient use of the left leg below the knee and compensation for 5% loss of efficient use of the left leg above the knee, and $35,000 compensation for pain and suffering pursuant to s67. On appeal from that decision three matters have been raised: 1. That the finding that the respondent's impairment of her back was half of a most extreme case within s66 and the Table to that section and Note (a) thereto was insupportable. 2. That the award of $35,000 for pain and suffering when the maximum amount able to be awarded at the relevant time was $41,700 constituted a finding that the pain and suffering equated to 84% of a most extreme case and such a finding was unsupportable. 3. That the awarding of compensation in separate amounts for both above and below the knee was impermissible in the light of the decision in the High Court in K B H Hutcherson Pty Limited v Correia!. It was accepted by the respondent that the decision in K B Hutcherson Pty Ltd would result in the appeal being upheld on ground 3 had the point been taken below. However it had not and, in those circumstances, it was accepted by Senior Counsel for the appellant that in light of the decision of this Court in Baker and Anor v Crittenden, the point not having been taken below could not be raised on appeal. Ground 3 thus fails. THE S66 POINT Four doctors expressed opinions in reports tendered regarding the extent of permanent impairment of the respondent's back. Doctors Hudson and Marnie qualified on behalf of the respondent worker assessed that impairment at 20%. Professor Pheils and Doctor Morris qualified by the appellant assessed the impairment at between 8-10%. Thus there was no medical view of a permanent impairment of the back greater than 20%. It was against this background, and the evidence of the respondent that the trial judge assessed the extent to which the back injuries were "reasonably proportionate" to a most extreme case at 50%. 1. (1995) 183 CLR 50. 2. (Unreported, Court of Appeal, 17 July 1995). 2 UNREPORTED JUDGMENTS I understood it to be accepted by Mr Poulos QC, Senior Counsel for the appellant, that a judge was not bound by any medical determination of the extent of permanent disabilities. That is clearly so, as emerges from Jones Bros Bus Company Pty Ltd v Baker3. As Kirby P made clear: "Thus, Note (a) provides the formula for calculating the compensation recoverable in what I have termed the more "evaluative" injuries (brain damage, permanent impairment of the back etc, disfigurement). The judges who adhere to this first view are of the opinion that there is only one step to be taken in the calculation of the percentage recoverable in a case falling short of "a most extreme case". This is to determine where the reasonable proportionality of the case in hand is to be placed on a scale of compensation within the "range of percentages" provided in these cases referred to in the Table to the Division''4. The medical determination of the actual physical impairment thus addresses a different question to the assessment of the "reasonable proportionality" of the loss in question to a most extreme case. As Clarke JA said in Jones': "Notwithstanding I find it difficult to envisage that the expression of an opinion that there is, for instance, 25 per cent impairment of the back provides significant guidance to the Court. This is because the fixing of a percentage impairment without defining the standard against which the percentage is measured is of little, or no, assistance in determining what percentage should be awarded as reasonably proportionate to the maximum payable in a most extreme case." It has also been established by the decision of this Court in Lovett Building Pty Ltd v Burns® that whilst the assessment required to be made by the Court pursuant to s66 "is a relatively objective one... in the sense that no account is to be taken of the effect that the permanent disability has upon the worker in his or her work", the Court is nonetheless entitled to have regard to "subjective considerations which might bear upon the degree of the loss of the efficient use of the limb. People respond differently to disability and while it is relatively simple to measure a loss where portion of a limb is amputated it is obviously much more difficult to determine the particular impact of a disability, such as permanent damage to the nerves of a limb, upon the person's use of that limb. For this reason it maybe necessary in some cases to take into account the subjective symptoms of which the worker complains." With these considerations to mind, and recognising that the appellant must show the trial judge has reached a conclusion which is clearly wrong', the question remains whether the trial judge's assessment of the extent of permanent impairment of the respondent's back at 50% of a most extreme case falls within the permissible range of discretionary judicial decision. I do not think that it does. The assessment which must be made under s66 is whether there exists "the loss of a thing" mentioned in the Table. Here that involves determining whether there was permanent impairment of the back. That does not involve a consideration of pain in the past or in the future for those matters fall within s67. What must be assessed is the impairment at the date of hearing and its effect on the use of the 3. (1992) 26 NSWLR 322. 4. (1992) 26 NSWLR 322 at 330. 5. (1992) 26 NSWLR 322 AT 342. 6. (1992) 19 NSWLR 475 at 484-485. 7. Alpine Printing Pty Ltd v Porteous (Unreported, Court of Appeal, 30 October 1992). URJ ROYAL NORTH SHORE HOSPITAL v SULLIVAN (Cole JA) 3 body part being considered, here the back. The effect on the back may be determined by restrictions or incapacities. The respondent did not wear a brace on her back. Her back disability did not cause her to wear leg braces to reduce sciatic pain. She is able to work in her employment as manager of the St Johns Anglican Retirement Village in Glebe involving supervision of staff, attending the clients' needs, public relations activities and the like. She is able to drive from her home in Newport to Glebe each day. She is able to continue working at least 25 hours per week and several nights per week after work attend a university where she is studying. Her back has restricted her from playing tennis or squash and doing gardening other than of a minor nature and has restricted her in her activities with her grandchildren. Her back disability intrudes in the sense of causing pain in domestic activities such as hanging out washing or in personal activities such as washing her hair but nonetheless she is able to perform usual domestic and personal tasks. She is restricted in some aspects of bending and lifting. Thus it can be said that whilst undoubtedly the respondent has a permanent back disability it is not to a major or intrusive extent restrictive of the respondent in the life that she leads. In those circumstances in my opinion, an assessment that the permanent impairment of her back equates on a spectrum of disability to 50% of a most extreme case exceeds the permissible range of judicial discretion. I would uphold the appeal against the s66 determination. THE S67 POINT An appellate court should be more hesitant in disturbing a trial judge's finding regarding an assessment of a reasonable proportion of a most extreme case in a s67 claim than in considering a s66 claim. That is because s67 requires an assessment of "the degree and duration of pain and suffering and the severity of the loss or losses". The introduction of an assessment of pain involves very subjective considerations, and in that assessment a trial judge has an advantage not shared by an appellate court of being able to assess the evidence of the effect of such pain as may be established on the applicant giving evidence. The written word may not adequately convey the impression which may be given of a person's description of pain to that person. Nonetheless an appellate court is obliged to consider whether an assessment of pain and suffering is beyond the permissible limit of judicial discretion. The pain and suffering here to be assessed relates not only to the back disability but also to the leg disability. It involves a consideration of pain and suffering from the commencement of injury and into the future and a weighing of that assessment against a most extreme case. The respondent first suffered injury in August 1982. She has had since that time for varying durations and varying extents pain and weakness radiating from a lumbar sacral disc injury into her left leg. The back pain was of such dimension that on one occasion she had an injection into her spine which relieved the acute symptoms. She has had various periods off work including a fortnight in August 1982 and a month in mid-1989 resulting from back and leg pain. Whilst working, as she has for most of the period since initial injury, she suffers intermittent pain which is aggravated by bending or lifting. Generally speaking it can be said that she has a background of modest pain which is aggravated from time to time. She has now had that for 14 years and it will continue for the balance of her life, she now being 57 years of age. In addition to this continuous pain her activities have been restricted in the manner I have generally described. 4 UNREPORTED JUDGMENTS Whilst the pain and suffering occasioned by loss comprising the permanent impairment of her back and the restriction on use of portion of her left leg, in my opinion it is clearly beyond the range of discretionary assessment to equate her pain and suffering to 84% of a most extreme case. One only needs to consider the case of a young person in their teenage or early 20s with severe disabling restrictions, with the prospect of early onset of arthritic pain coupled with the suffering attendant upon incapacity to freely move or in any way conduct a normal life from an employment and personal aspect, to recognise that Mrs Sullivan's position does not equate on the spectrum of pain and suffering to anything approaching 84% of a most extreme case. In my opinion the appeal against the award pursuant to s67 should also be upheld. I would propose the following orders: 1. That O.2(1), O.3 and O.5 made by Manser J on 14 February 1994 be set aside. 2. That the respondent's claim pursuant to s66 and s67 Worker's Compensation Act 1987 be returned to the Compensation Court of New South Wales for determination. 3. The respondent is to pay the appellant's costs of the appeal but is to have, if qualified, a certificate under the Suitor's Fund Act. Counsel for the Appellant: J Poulus QC Solicitors for the Appellant: Hunt and Hunt Counsel for the Respondent: P Menzies QC/L Stanton Solicitors for the Respondent: White Barnes