DEPARTMENT OF SCHOOL EDUCATION v BOYD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and BEAZLEY JJA 15 July 1996, 15 July 1996 [1996] NSWCA 152 WORKERS COMPENSATION — s40 award of weekly compensation — whether expressed intention to engage in work sufficient — s67 award for pain and suffering — whether trial judge took into account irrelevant matters ORDERS 1. Appeal be dismissed with costs. Beazley JA This is an appeal from a decision of Judge Moran of the Compensation Court of New South Wales given on 14 November 1995 in which his Honour ordered that the appellant pay to the respondent, on the basis of partial incapacity, weekly compensation at the rate of $50 per week from 12 February 1992; that the appellant pay the respondent, as lump sum compensation under s66, an amount representing 75 percent loss of sight of the respondent's left eye; and further ordering that the appellant pay to the respondent, as lump sum compensation under s67, an amount of $29,640 in respect of pain and suffering. The appellant appeals against the award of weekly compensation contending that, notwithstanding the admitted work-related injury, the respondent was not entitled to weekly compensation under s40 of the Act. The appellant also appeals against the order under s67 contending that the assessment in the sum of $29,640, which represents a finding that the injury was 60 percent of a worst possible case, was outside a proper discretionary award. The respondent, who was aged 54 years at the date of injury and 58 at the date of trial, commenced employment on a permanent part-time basis with the appellant on or about 15 July 1991. The nature of his employment was as a farm assistant at Lithgow High School working three days per week. Prior to about 1988, the respondent had been engaged in full-time employment in the mining industry. After leaving that work he had been unemployed for a period of time. In early 1991 he commenced taking on work of a casual nature and generally of short duration. In particular in January 1991, he did three days work at Invincible Colliery and between 23 March 1991 and 19 April 1991 he was employed at McIlwraith Minerals, apparently either driving a large truck or operating heavy machinery. The respondent also conducted a farming property and was engaged in the day-to-day running and management of the farm. However. in the relevant period, the farm had operated at an annual loss. The respondent suffered two injuries to his eye, the first on 27 November 1991, when he was hit on the left side of his head by a gate which had been charged at by a billygoat and the second, on 29 November 1991, when he was hit across the left side of his face by a hose. As a result of both of those injuries, the appellant sustained a substantial injury to his left eye including a detachment of the left retina which was repaired by Dr Playfair. The respondent returned to his permanent part-time work with the appellant on February 1992 and has remained in that employment since. During the time from the commencement of the respondent's employment with the appellant on 15 2 UNREPORTED JUDGMENTS July 1991 until the dates of the accidents, the respondent had not engaged in any other part-time or casual work other than for that with the appellant. Notwithstanding that, the trial judge found that the appellant, as a result of the loss of the sight of his left eye, had a partial incapacity on the open labour market and that his probable earnings, had he not been injured, were roughly $50 per week in addition to what he had been earning with the appellant. The appellant contended that the respondent's case went no higher than involving an expressed intention by him to engage in other casual employment but that intention per se was not enough for the purposes of an award under s40 of the Act in the form that was in force at the time of the accident. There may be some cases where that proposition might be able to be made good. However, if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work, that may be sufficient for the purposes of s40. In this case, prior to the accident, the respondent had engaged in casual work with a number of different employers. In his evidence the respondent said that whilst in the employ of the appellant, he intended to continue to seek casual work of the type he had engaged in prior to the accident. His Honour accepted that this was so. In any event, some months after the accident, the respondent engaged in one day's work operating a bulldozer and said that he would have continued to do that work on a casual basis but found he could not because of the injury to his eye. For both of these reasons, namely, the acceptance by his Honour of the respondent's expressed intention to do other casual work and of the fact that, on at least one occasion, the respondent had put that intention into practice, the attacks on the s40 award must fail. I should also add that an attack was made on the amount of the award which his Honour ordered. That attack was based upon a contention that his Honour failed to approach the assessment of the $50 per week in accordance with the process which this Court has held applies in determining a s40 award: see Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 at 567. However, I am satisfied that his Honour substantially followed that process and no error has been demonstrated in the manner at which he arrived at the award for weekly compensation. The second issue raised upon the appeal related to his Honour's assessment for pain and suffering under s67 of the Act. In particular, it was submitted that his Honour had taken into account matters irrelevant to the question arising under s67(3) by referring to the interference with the respondent's social activities such as following hockey and, in particular, the interest he had in watching his children play hockey. It was also submitted that his Honour had failed to take into account or give due weight to the fact that some of the pain the respondent suffered apparently arose from his neck. This latter submission was based upon an opinion of some of the medical practitioners that the respondent's pain was due to an injury to his cervical spine and was not related to the injury which the respondent sustained to his eye. In particular Dr Worsley expressed this view. However, the trial judge clearly preferred the evidence of Dr Playfair who was the respondent's treating surgeon and also Dr Delaney who provided a report for the appellant. Both of those medical practitioners, although raising a question about the cause of the pain which the respondent was suffering, accepted not only that the respondent was genuine in his complaints of pain but that, referring to the opinion of Dr Delaney, "... persistent neuralgia has been documented following URJ DEPARTMENT OF SCHOOL EDUCATION v BOYD (Priestley JA) 3 eye surgery and in particular retinal detachment surgery." It was open to his Honour to accept this evidence and the like evidence of Dr Playfair, and no error has been demonstrated by not accepting the other evidence, such as that of Dr Worsley, relied upon by the respondent. I do not consider that his Honour, by making a reference to the interference with the social activities, fell into error. S67 clearly encompasses distress which may be demonstrated in such a way. In this case where there was a substantial injury to the eye involving 75 percent loss of vision and other sequelae which has been referred to in the medical evidence and in his Honour's judgment, it seems to me that his Honour's award was within an appropriate discretionary range and I would dismiss the appeal with costs. Priestley JA I agree. For myself I would only add that in regard to the submissions addressed to us on the s40 point, I think there was evidence before the trial judge justifying his factual conclusions. I also think that the trial judge's reasons sufficiently show that in substance he went through the process s40 requires a Judge to go through as exemplified in the Kesen case. I agree with the orders proposed. Handley JA I agree with both of the previous judgments but will add some brief observations of my own on the appellant's challenge to the award for partial incapacity, pursuant to s40(1). The issue on this part of the appeal was whether the finding by the trial judge that the worker's probable earnings from casual work, but for the injury, would have been $50 per week, was vitiated for error of law. Mr Campbell submitted that the trial judge acted on evidence of intention which was not sufficient and he relied on the statement of principle by Sugerman JA in Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 at 92 referred to in his written submissions. In my judgment this statement relates to an unfulfilled intention to change to other employment which was neither the same nor comparable to that in which the worker was employed when injured. It does not apply where the worker intended, as this worker did, to remain in the same or some comparable employment. I agree with the orders proposed. Priestley JA The appeal is therefore dismissed with costs. Appeal be dismissed with costs. Counsel for the Appellant: SG Campbell Solicitors for the Appellant: M Cranitch SC with L Stone Counsel for the Respondent: Messrs Hunt and Hunt Solicitors for the Respondent: Barry F Cosur, Lithgow