STATE OF NEW SOUTH WALES v SINCLAIR [1996] NSWCA 487

STATE OF NEW SOUTH WALES v SINCLAIR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, COLE JJA and ROLFE AJA 18 July 1996, 18 July 1996 [1996] NSWCA 487

ASSESSMENT of s66 and s67 Workers Compensation Act 1987 sums by trial judge not disturbed — s67 sum include assessment for "distress".

Cole JA The employer has appealed against an award under the Workers Compensation Act 1987 made by Burke CCJ in favour of the respondent. His Honour awarded lump sum payments pursuant to s66 of $39,000 in respect of a 50% impairment of the back, $19,380 in respect of a 20% permanent loss of the efficient use of the left leg at or above the knee and $14,535 in respect of a 15% permanent loss of efficient use of the right leg at or above the knee. In addition his Honour awarded the sum of $38,000 pursuant to s67 in respect of pain and suffering which equated to 59% of the maximum allowable in respect of a worst case.

Two grounds of appeal were pressed. The first was that the awards pursuant to s66 were excessive and against the weight of the evidence.

There was medical evidence supporting a permanent impairment of the back of up to 30% and in respect of each leg at or above the knee of up to 10%. The trial judge regarded these as "organic assessments" but was of the view that there was a "super added component of further restriction in the use of the legs because the use of them tends to promote excess back pain, and the applicant thereby desists from using them". This resulted in a greater permanent loss of the efficient use of portions of both lower limbs!. It was contended that there was no evidence to support that approach.

I do not think that is so. Dr Bleasel's report notes a complaint of "difficulty walking due to pain in the back and legs'. It is thus apparent that activity with the legs caused pain not only in the legs but in the back and, having regard to the trial judge's capacity to assess the quality of the respondent's evidence, I see no basis for interfering with his assessment of the quantum of the loss of function found in respect of the s66 claim. As was made clear in Manning Valley Senior Citizens Home Ltd v Cleveland3, a court is not bound by an expression of medical opinion.