DUBBO BASE HOSPITAL v HARVEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and BEAZLEY JJA 28 May 1996, 16 October 1996 [1996] NSWCA 579 WORKERS COMPENSATION — Whether award excessive based on medical evidence — whether s67 award compensated for previous injury Workers Compensation Act 1987, s66, s67 WORKERS COMPENSATION — Whether s66 award excessive based on medical evidence — whether s67 award compensated largely for previous injury The respondent suffered an injury to his lower back while employed by the appellant on 9 September 1992 when he slipped on a paved pathway. Prior to this incident, in 1989, the respondent had suffered injuries to his right side, including substantial loss of use of the right upper and lower limbs, in a car accident. The trial judge found that the respondent's lower back condition arose from the incident on 9 September 1992, and pursuant to s66 Workers Compensation Act 1987, that the respondent's impairment was equivalent to 59% of a most extreme case. The appellant challenged the s66 award on the basis that it was outside a sound discretionary limit, the medical assessments given in evidence ranging from between 20 - 30% of a most extreme case. The trial judge also awarded the respondent 66% of the maximum amount of damages available under s67 for pain and suffering resulting from the permanent impairment of his back. The appellant argued that the trial judge erred in this award because it compensated the respondent for the losses he had sustained in the motor vehicle accident in 1989, for which the appellant was not liable. HELD: (1) No appealable error was demonstrated in the trial judge's s66 award. The matters relied upon by the respondent demonstrated that he had suffered significant impairment of his back, and the trial judge's assessment fell within a permissible discretionary range. (2) The trial judge correctly assessed the respondent's entitlement under s 67, approaching the loss suffered by the respondent in the injury subject of the claim on the basis that its effect was all the more substantial because of his existing disabilities. ORDERS The Court orders that the appeal should be dismissed with costs. Handley JA I agree with Beazley JA. Sheller JA I agree with Beazley JA. Beazley JA INTRODUCTION This is an employer's appeal from a decision of Judge Burke of the Compensation Court. Certain of the background facts are contained in the appellant's narrative of Facts filed in accordance with Practice Note No 65. That Narrative should be read in conjunction with these Reasons. It should be noted that the injury relevant to the issues raised on the appeal occurred on 9 September 1992. The respondent had suffered an earlier, serious injury, in a car accident on | April 1989. ISSUES ON APPEAL Two issues arose on the appeal. First, whether the s66 lump sum award for the respondent's back injury was excessive, being far in excess of the medical assessments of impairment. Secondly, whether the s67 2 UNREPORTED JUDGMENTS award was erroneous, in that it effectively compensated the respondent "in large part for the effects and loss arising from the motor vehicle accident in 1989". THE S66 AWARD The essence of the appellant's argument in respect of the challenge to the s66 award was that it was outside a sound discretionary limit. This submission was based solely upon the discrepancy between the medical assessments of impairment which ranged from 20-25% to 30% and his Honour's assessment, which was equivalent to a finding that the respondent's impairment was 59% of a most extreme case. In support of this submission, counsel for the appellant relied upon Friday Cottage Australia Pty Ltd v Misic (unreported, NSW Court of Appeal, 22 August 1995). Before dealing with that case, it is useful to recall the principles which govern the making of an award under s66. First, the Court is not bound by any medical determination of the extent of permanent disabilities: Jones Bros Bus Company Pty Ltd v Baker (1992) 26 NSWLR 322. Secondly, the Court is entitled to have regard to "subjective considerations, albeit that the overall test "is an 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": Lovett Building Pty Ltd v Burns (1992) 19 NSWLR 475 at 484-485. Taking these considerations into account the proper approach to be taken in calculating the compensation payable under s66(1) in respect of impairment to the back was as stated by Kirby P in Jones Bros Bus Company Pty Ltd v Baker at 331, namely: "to determine where the reasonable proportionality of the case in hand is to be placed on the scale of compensation within the "range of percentages"...referred to in the Table to the Division". The Table referred to in this passage specifies the "Percentage of maximum amount payable" for various permanent injuries. In the case of permanent impairment of the back, the percentage of the maximum amount payable is 0-60. Counsel for the respondent did not dispute the correctness of the decision in Friday Cottage. Rather, he submitted it was a decision on its own facts. He submitted that this case was different. In Friday Cottage the percentage awarded by the trial judge was not supported by the medical evidence and was inconsistent with the judge's own finding that the worker had been able to earn $320 per week. Counsel submitted that that finding alone provided an objective matter which an appellate court could look at in deciding whether the trial judge's assessment was outside a sound discretionary limit. There were no such factors in the present case which indicated that his Honour's discretion had miscarried. Indeed, the relevant objective factors in this case supported the correctness of his Honour's decision. Those factors included that the respondent had had four major spinal operations, he had been in a full hip to chest plaster for 6 weeks after the second operation; that he has had to wear a brace from time to time; that he sometimes needed to use a walking stick; that he required a posturepaedic water bed with soft sides in order to get any sleep; that he has required admission to hospital on a number of occasions, including an occasion after intercourse; and that he was on a regime of strong medication, including, suppositories for pain relief and that he had difficulty sleeping, requiring sleeping tablets. In my opinion, the appellant has not demonstrated any appealable error in the trial judge's assessment: see Alpine Printing Pty Ltd v Porteous (unreported, NSW Court of Appeal, 30 October 1992); Royal North Shore Hospital v Sullivan (unreported, NSW Court of Appeal, 15 March 1996). The respondent suffered a serious injury to his back which has led to significant impairment. That impairment was demonstrated in various ways, some of which have been referred URJ DUBBO BASE HOSPITAL v HARVEY (Beazley JA) 3 to above. It should be noted that some of the matters relied upon by counsel for the respondent and to which I have referred are not strictly matters which demonstrate impairment as such. However, it was submitted, for example, that the medication the respondent was taking, or his inability to sleep due to pain were appropriate matters to take into account when determining the award which should be made under s66 as they indicated the severity of the respondent's back condition. Considered in that way, the matters relied upon by counsel are relevant and do demonstrate, as was submitted, that the respondent had a significant impairment of his back. It follows that it cannot be said that his Honour's assessment fell outside a permissible discretionary range. THE S67 AWARD S67, in its form as it applied to this case, provided: "(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, or amount not exceeding $61,750.00... (7) In this section: "pain and suffering" means: (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. The trial judge found that "as far as s67 is concerned, (the respondent) has quite marked losses". His Honour awarded the respondent 66% of the maximum amount of compensation payable under the section for pain and suffering resulting from the permanent impairment of his back. In reaching this assessment, the trial judge stated: "When one comes to look at him in relation to the injury of September 1992, in effect, that respondent takes the applicant as he finds him. He was then a man with substantial disabilities. He was a man who had a not insubstantial limitations on the activities and things that he could do. In one sense and in a practical sense, I think that where your range of activities has been inhibited by other events and you are left with a restricted range, to withdraw that range of activities from you is of much more substantial effect. If you have 10 units of something and you lose five, that is one thing, but if you only five left and you lose four of them, it is a pretty parlous state of affairs.... He has a greater degree of distress, I think, than he would have if he had not had the effects of the motor vehicle injury. When you have only a little bit remaining' sort of thing, to take most of that away from you is really distressing or depressing and, indeed, the applicant has obviously had not insubstantial depressive problems, at least from time-to-time. So by and large, I think his degree of pain and suffering, taking into account the emotional distress, is substantial." Counsel for the appellant submitted that these passages demonstrated that the trial judge had awarded compensation for the losses sustained by the respondent in the motor vehicle accident in 1989 in respect of which the appellant was not liable, in a manner which resembled the decision in Rodios v Trefle (1937) 54 WN (NSW) 197 and which was not permissible under the section. Counsel submitted that the proper approach to s67 was as stated by Mahoney P in Glennos Construction Pty Ltd v Beccari (unreported, 1 October 1993): "If a worker has pain and suffering resulting partly from a Table loss and partly from a loss not referred to in the Table, there must in principle be a dissection; he can be given damages for the former but not for the latter." 4 UNREPORTED JUDGMENTS Reliance was also placed upon Carter Corporation Pty Ltd v Medway (unreported, NSW Court of Appeal, 12 July 1995) where Clarke JA stated, at 5-6: "\..the respondent is entitled to be compensated, and only compensated, for the consequences of the loss which he suffered as a result of the work injury." Counsel for the respondent did not dispute the appellant's legal submissions. He submitted, however, that his Honour did not err in his application of the law to the facts here. Rather, he submitted, the trial judge correctly assessed the respondent's entitlement to an award under s67 on the basis that his back injury was superadded upon his previous disabilities and that made "his back condition the more devastating". In my opinion, this is a correct interpretation of his Honour's judgment. His Honour's approach did not involve compensating the respondent for loss unassociated with the work incident subject of the claim. His Honour clearly had in mind the injuries sustained and loss suffered by the respondent in the motor vehicle accident. His Honour then considered, independently from the motor vehicle injuries, what loss the respondent suffered from the injury subject of the claim. He approached that loss on the basis that its effect was all the more substantial because of his existing disabilities. It follows from what I have said that this part of the appeal must also fail In my opinion, the appeal should be dismissed with costs. Representation: Counsel for the Appellant: J Poulos QC/A Bell Solicitors for the Appellant: Stephanie Quinn Counsel for the Respondent: L King SC/J Curran Solicitors for the Respondent: Messrs King Cain Carver