THE DUBBO BASE HOSPITAL and ANOR v FULLER [1996] NSWCA 160

DUBBO BASE HOSPITAL v FULLER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, COLE and BEAZLEY JJA 28 November 1996, 28 November 1996 [1996] NSWCA 160

WORKERS' COMPENSATION — ASSESSMENT — Whether worker was "a most extreme case within s67 Workers Compensation Act 1987 — trial judge's determination beyond proper bounds of discretion

Beazley JA The appellant appeals from a decision of Manser CCJ in the Compensation Court given on 6 December 1995. The sole issue which was argued on the appeal was that his Honour erred in assessing compensation under s67 as a most extreme case. Ground 5 of the appeal was only pursued to the extent that it related to that primary issue.

The respondent has suffered an injury to her back in the form of a strain when lifting a heavy tray of cutlery during the course of her employment with the appellant. The trial judge found that the applicant has suffered a 30% impairment of the back, a 20% loss of efficient use of the right leg at or above the knee and a 5% loss of the left leg above the knee and made awards under s66 in respect of those impairments. These assessments and the subsequent awards were in conformity with a number of medical assessments and no challenge is made to the s66 determination.

His Honour determined, however, that for purposes of s67 of the Act, the respondent should be considered as a most extreme case and he then awarded the maximum amount payable under that section. In coming to that assessment, his Honour referred to a number of factors, including that the respondent had been adversely affected by the medication which was prescribed and ingested, that there was some uncertainty as to the future progress in her condition and to that extent she was in an unpredictable state; that she could be made worse by the occurrence of minor activities which also added to the difficulty of making the prediction about her future; and that, given the life tables, she still had about 35 years of difficult circumstances which she had to endure because of the condition of her back and legs and there was no realistic prospect of her getting better in the future, although his Honour stated there was equally no reason to believe that she would be as bad or worse than the past. His Honour also took into account that the respondent had been significantly affected psychologically by her injury and that her own psychological state had an adverse effect on her family and on one son in particular so that: