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: "A loop has been established which connects the applicant's own psychological state in part to the psychological state of her son." However, his Honour considered that latter factor was a relatively minor factor overall. His Honour stated that: "What is significant is the actual pain which the applicant has experienced and for which she has undergone extensive treatment both of an aggressive kind and by way of medication." 2 UNREPORTED JUDGMENTS There is no doubt that the psychological or psychiatric effect to which I have referred is a matter which is properly taken into account under s67. If authority is required it can be found in the judgment of Handley JA of this Court in Pacific Dunlop Ltd v Krevic, unreported, 15 August 1996 at 8. Notwithstanding these matters to which I have referred which are, of themselves, serious, there was undisputed evidence in the case that the respondent was mobile and was able to engage in a lifestyle which enabled her to drive a car, to do her shopping and to do some house work, albeit with restrictions on those activities caused by the pain from which she suffered. There was also evidence, which seems to have been undisputed, that the pain in her back was bad and that it seemed to be getting worse in the sense that it had gone to her left side. However, she did from time to time have temporary periods of relief. There are undoubted and well known restrictions on this Court interfering with a discretionary judgment which is here under consideration. It is not necessary to dwell on the legal principles which govern this Court in dealing with this application. However, it seems to me that his Honour's determination that this respondent was an example of the worst case was well beyond the proper bounds of a discretionary determination and, in my opinion, ought not to stand. Neither party urged this Court to itself enter into the task of assessing the appropriate award under s67 and, accordingly, there is no other course but to remit the matter to the Compensation Court for re-determination. Accordingly, I propose that the orders of the Court be that the appeal in respect of the trial judge's award under s67 be allowed, that the appeal otherwise be dismissed, that the matter be remitted to the Compensation Court for re-determination of the s67 award. That leaves only the question of costs. Counsel for the respondent submitted that, even if the appeal was successful, the respondent should be entitled either to the whole of the costs of the appeal or half the costs because of the abandonment of three out of five grounds of appeal, which was effectively an abandonment of half the appeal. In my opinion it would not have taken any more time in a relative sense to argue the s66 and s67 case. However, the time for preparation of the s66 case would have involved extra work. Accordingly, I am of the opinion that the respondent should be entitled to half the cost of preparation of the appeal but that otherwise the respondent should pay the costs of the appeal. Clarke JA I agree with her Honour except on the question of costs. In my opinion there is no reason in this case why costs should not follow the event. I would propose that the order be made that the respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act in respect of those costs. Cole JA I also agree with her Honour but I agree with Mr Justice Clarke in relation to the orders proposed for costs. Clarke JA: The order of the Court will be that the appeal against the award under s67 is allowed, otherwise the appeal is dismissed. The award made by Judge Manser under s67 is set aside, otherwise his award stands. The matter of the determination of an appropriate award under s67 is remitted for further assessment by the Compensation Court. The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act in respect of those costs. URJ DUBBO BASE HOSPITAL v FULLER (Cole JA) Counsel for the appellant: J Poulos QC; Solicitors for the appellant: Messrs Stephanie D Quinn, Newcastle Counsel for the respondent: M Joseph SC and M Best Solicitors for the respondent: Messrs McClellands