GILBARCO AUSTRALIA LTD v VAN ZANDEN [1996] NSWCA 211

GILBARCO AUSTRALIA LTD v VAN ZANDEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY JJA and ABADEE AJA 25 November 1996, 25 November 1996

[1996] NSWCA 211

Workers Compensation — Loss of use of sexual organ — Assessment of pain and suffering. Workers Compensation Act s66, s67

Abadee AJA The respondent worker was injured at work. Weekly compensation was awarded. In addition he was awarded compensation under s66 of the Workers Compensation Act for fifty per cent of a most extreme case back injury, twenty per cent of the loss of the efficient use of the right and left legs, at or above the knee, and for 100 per cent of the loss of use or the loss of sexual organs. The two grounds of appeal are as follows.

The appellant employer challenged the finding that the respondent suffered 100 per cent permanent loss of the use of sexual organs, and the finding that the respondent's pain and suffering was equal to a most extreme case. I shall now consider each of these challenges.

In relation to the first ground the appellant submits that because the respondent's penis had a non-sexual function, being urination, absent evidence that this function was disturbed or affected, and there was none, it was not appropriate to conclude that there was a 100 per cent loss of function.

Further, it was submitted that there was no evidence as to the permanency of the problem. In my view these submissions should be rejected.

His Honour in finding the percentage loss of function relied heavily not merely upon the respondent worker's evidence but also the evidence of Dr Patterson, a Urologist. The respondent gave evidence that he had been unable to have sexual intercourse in "any role" and also to the effect that he had "no sex life" at all. The respondent said that he had noticed difficulty with sexual activity after his initial back injury and following surgery in August 1994 he was unable to have an erection. He gave evidence that prior to that surgery he had been able to have an erection but since the surgery had also been unable to have intercourse because of the pain in his back.