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. Judge Burke accepted the respondent's evidence that prior to surgery he could not have intercourse because of the pain in his back. He accepted that since the surgery he could not get an erection. Further, he accepted Dr Patterson's evidence of 100 per cent loss of use of his sexual organ. It is also appropriate to observe that his Honour accepted the respondent's account of back problems which impacted upon his capacity to have an erection. His Honour concluded that the respondent, suffered 100 per cent loss of use or loss of efficient use of sexual organs and awarded a maximum lump sum for that total amount. That the worker now suffers a disabling loss of the efficient use of sexual organs as a result of back pain from a back injury and surgery, although the organs themselves remain undamaged is not really capable of being disputed: Department of Public Works v Morrow (1986) 5 NSWLR 166 and Road and Traffic Authority v Malcolm (CA, 4 July 1996, unreported) per Handley JA at 3 with whom Powell JA agreed. 2 UNREPORTED JUDGMENTS It is to be observed that whilst in Malcom it was argued that the figure of eighty per cent found loss was not reasonably apportioned having regard to the facts in that case, it does not appear to have been suggested that because the penis was being used for urination purposes, that such matter should or ought to be taken into account when determining the loss of the efficient use of the sexual organ. In the instant case the finding by the trial judge that the respondent worker could not use sexual organs for any sexual function is an answer to the appellant's submission. It seems to me that if the sexual organ is not capable of being used or efficiently used as a sexual organ then there has been the relevant total loss of the sexual organ for the purposes of the table. In my view the award of 100 percent loss of efficient use because of an inability to obtain or maintain an erection since the back surgery is therefore a valid and proper one and is incapable of being interfered with. The first ground of appeal should be rejected. I now turn to the second ground of appeal advanced against his Honour's award. His Honour assessed the respondent's back condition for the purposes of s66 as being fifty per cent of a most extreme case. Notwithstanding this finding, when his Honour came to pain and suffering for the purposes of s67 he awarded compensation based upon 100 per cent of a most extreme case, the appellant submits that this must be regarded as outside safe discretionary limits. Of course, in the assessment of the amount to be awarded for pain and suffering one should not merely confine one's attention to the back condition per se, but also have regard to the pain and suffering associated with the leg problems, as well as the distress associated with the respondent worker's loss of sexual life. In performing the assessment the Compensation Court will in a case such as the present need to be careful to avoid compensating workers in a way that could involve a significant degree of overlapping and double counting for what is in truth, the same loss. Compensation should not be awarded twice for the same pain and suffering. The respondent at the time of trial was aged fifty-two years. He gave a history of having had some back problems. The ultimate relevant injury for the purpose of his Honour's award was that which occurred on 1 December 1992 when he fell backward onto his buttocks and had bilateral pain. His Honour found that the respondent worker had been in trouble since. He had had extensive treatment including steroid treatment and injections which did not furnish relief. In August of 1994 the respondent submitted himself to surgery and the L5-S1 disc was excised. However, since then whilst there was initial improvement, the respondent worker has continued to suffer very significant problems including bilateral leg problems, tingling, pins and needles. His lifestyle has been seriously interrupted and he has constant back pain, having good and bad days. He also has disturbed sleep problems associated with a fixed posture. There has been substantial and significant interference with his social life. His Honour found that the physical pain that the respondent worker was suffering from for some time was substantial and on occasions catastrophic. He also described the respondent as having feelings of irritability, of being belittled and of frustration. His Honour then proceeded to find that relative to a most extreme case of pain and suffering that the respondent was within that hypothetical case. Despite all these consideration in my opinion the award under s67, based upon 100 per cent of a most extreme case cannot be supported in the light of all of his Honour's findings and the evidence given at the trial. Indeed the award is rather URJ GILBARCO AUSTRALIA LTD v VAN ZANDEN (Cole JA) 3 suggestive of an extent of overlapping and double counting. In my view it is an award outside the range of sound discretionary judgment in the light of the evidence and findings and should be set aside. Counsel were invited to put submissions to the court in the event that the court concluded that the award for pain and suffering was excessive. On behalf of the appellant Mr Webb QC submitted that an appropriate award under s67 should be in the order of seventy to seventy-five per cent. Mr Capelin QC on behalf of the respondent worker whilst not conceding that there should be an interference with the trial judge's award submitted that were the court to consider that the s67 award was excessive that it should assess the amount payable under that section as being in the order of seventy-five to eighty per cent. In my opinion, for the reasons given, I am of the view that the award under s67 based upon 100 per cent of the most extreme case cannot stand and I would substitute for that award an award based upon seventy-five per cent of a most extreme case. I would propose the following orders: 1. That the appellant's appeal against an award under s67 of the Workers Compensation Act 1987 be allowed. 3. That the interest should be awarded on the sum of $48,300 at the rate of three per cent from 20 January 1995 and to be agreed as and between the parties, otherwise liberty to apply in relation to the matter of interest. 4. Otherwise the appeal should be dismissed. 5. I would propose that the appellant should pay the respondent's costs of this appeal. Cole JA I agree. I would add only two things. In relation to the first ground of appeal a similar point was argued in Malcolm v Roads and Traffic Authority of New South Wales (1995) 12 NSW CCR 258. There the trial judge, Judge Neilson, said: "The penis must be regarded as a sexual organ rather than part of the excretory system". That was a view which was adopted by Mr Justice Handley with whom Mr Justice Powell agreed in the unreported decision on appeal in that case delivered on 4 July 1996. The learned President, Mr Justice Mahoney, seems to have adopted a different view. With respect, I would adopt the view endorsed by Mr Justice Handley and adopted by Mr Justice Powell. The second matter concerns the s67 point. As this court made clear in Royal North Shore Hospital v Sullivan it is not usual that the court can re-assess s67 assessments where it is of the view that the assessment of the initial judge should be disturbed. However, in this instance there was no challenge to the evidence given on behalf of the applicant for compensation. In those special circumstances this court is in a position to deal with this matter. I agree with the orders proposed. Beazley JA I agree with both Mr Justice Cole and Justice Abadee for the orders proposed. Cole JA The orders of the Court are as indicated by Abadee AJA. 1. Appellant's appeal against an award under s67 of the Workers Compensation Act 1987 allowed. 2. Interest awarded on the sum of $48,300 at the rate of three per cent from 20 January 1995 and to be agreed as and between the parties, otherwise liberty to apply in relation to the matter of interest. UNREPORTED JUDGMENTS 3. Otherwise the appeal should be dismissed. 4. Appellant to pay the respondent's costs of this appeal. Counsel for the appellant: P Webb QC/C Pitts Solicitors for the appellant: A O Ellison & Co Counsel for the respondent: P R Capelin QC/S B Lowe Solicitors for the respondent: Moroney Rutter & Mantach