DEPARTMENT OF CORRECTIVE SERVICES v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and STEIN JA 8 May 1998, 27 May 1998 [1998] NSWCA 228 Workers Compensation Act 1987 — s40 determination of weekly compensation in respect of any period of partial incapacity s40(2)(a) and S40(2)(b) — whether exercise of s40(1) discretion miscarried. Practice and procedure — late application to amend notice of appeal — potential prejudice — merits of amendment — refusal of leave. Priestley JA I have had the benefit of reading in draft Stein JA's reasons in this appeal. The application to amend the notice of appeal was made very late, and in a way that arguably caused relevant prejudice to the respondent. Late applications of this kind seem to be increasing. They should be discouraged, in the interests of all the parties in an appeal, and in the interests of the court's best use of precious time. I agree that in this case the application to amend should be dismissed. In my view it was, in any event, without merit. I agree with Stein JA that it is reasonably clear, on an examination of Moran CCJ's reasons, that he complied with the requirements of s40 of the Workers Compensation Act 1987 in working out the relevant awards for weekly compensation and that no appellable error was shown. I agree with the orders proposed by Stein JA. Sheller JA I have had the benefit of reading the judgment of Stein JA in draft. I agree with the orders that his Honour proposes. In my opinion, the amended grounds of appeal upon which the appellant relied were for the reasons given without any merit and, accordingly, the application for leave to amend the notice of appeal should be refused and the appeal dismissed. Stein JA This is an appeal from a decision of Moran CCJ in the Compensation Court. The Notice of Appeal was filed on 16 June 1997. It contained two substantive grounds of appeal and a third ground which stated: 3. Such further grounds as may become apparent when the transcript of His Honour's judgment becomes available. The first two grounds were abandoned in an amended Notice of Appeal, annexed to the appellant's submissions dated 5 May 1998. At the commencement of the hearing, the appellant sought leave to rely on the amended Notice of Appeal but asked to further amend it, conceding, at least, that ground No | did not raise a question of law and needed to be recast. The respondent opposed the amendment on a number of grounds. The most important factors relied on were the absence of any explanation for the delay and the potential prejudice to the respondent. The claimed prejudice was that the respondent was deprived of the opportunity of taking advice on the amended grounds and perhaps seeking to compromise the matter prior to the incurring of substantial costs. 2 UNREPORTED JUDGMENTS It is plain that the original grounds of appeal did not raise any error of law or question as to the admission or rejection of evidence. Not surprisingly, they were abandoned. However, the proposed new grounds of appeal also appear to raise alleged errors of fact finding in the reasoning process of the trial judge. This is notwithstanding the attempts of Mr Poulos QC, senior counsel appearing on behalf of the appellant, to redraft the amended notice of appeal during the hearing. I have recently had occasion, in Email Ltd v Stedman (unreported, Court of Appeal, 29 April 1998) to remark that applications to extensively amend or supplement grounds of appeal seem to have become almost commonplace in the court and that it is a practice which should be discouraged. In this case, the appellant had many months after the transcript became available to amend the Notice of Appeal. It is obvious that nothing was done until the Tuesday before the hearing on the Friday and then the amended appeal itself was admitted to be inadequate and required further amendment. What I said in Email applies equally here: In my view there is much to be said for appellants, and those who advise them, to have a hard look at a case at the time that grounds of appeal are filed and not put out that assessment until shortly before the hearing. This is particularly so in an appeal such as this which is limited to questions of law (s32 Compensation Court Act 1984). Not to take a 'hard look' at the time that the grounds of appeal are formulated also works a potential detriment on the respondent. The attempts to amend the appeal at this late stage have visited an unreasonable potential prejudice upon the respondent and also indicates a scant regard for this court. What has happened here has deprived the court of properly preparing itself for the hearing which, of itself, is an aid to litigants and calculated to save hearing time. In the circumstances, I would refuse leave to amend. Nevertheless, I think it useful to consider the issues raised in the appeal in case that conclusion be incorrect. FACTS The respondent, Jennifer Lee Smith, was working as a correctional officer at the Lithgow Correctional Centre on 2 April 1991 when she suffered an accident. While assisting an inmate who had been wounded and was bleeding profusely, she slipped and fell in a pool of blood, injuring her back. The officer was sent home and was off work for about 8 days. She continued to experience problems with her back on her return to work and did not return to normal duties. In October 1991 she left her employment when she suffered a nervous breakdown unrelated to the injury. Between October 1991 and the time of the hearing in May 1997, the worker had two short periods of full time work. In October 1993 she was employed for a six week period by Lithgow Security. Her average wage for that period was $560 per week. Between 15 September 1995 and 18 December 1995 she worked full time for the Army Reserve, of which she had been a member for many years. During that period her average weekly wage was $379. In 1996 the respondent worked part-time as a security officer for Grace Bros. The worker also gave evidence of a number of motor vehicle accidents in which she had been involved both before and after the work-related injury and also of two assaults she had suffered since the subject injury of 2 April 1991. URJ DEPARTMENT OF CORRECTIVE SERVICES v SMITH (Stein JA) 3 THE JUDGMENT BELOW The worker made a claim under the Workers Compensation Act 1987 (the Act) for compensation for loss of earnings, lump sum compensation under s66 and s67 of the Act, interest and for s60 expenses. She claimed that, as a result of the 5 injury, she had suffered percentages of loss of use to her neck and both legs above the knee and a percentage of impairment of her back. The trial judge canvassed the medical evidence relating to the damage to the worker's back, legs and neck and concluded that there was insufficient evidence to show that the worker had suffered any impairment to her neck or legs as a 10 result of the injury of 2 April 1991. However, he found that she had suffered a 15% impairment of her back and was entitled to compensation for loss of earnings and lump sum compensation under s66. As the loss was less than 10% of the maximum payable, the worker was not entitled to an award for pain and suffering under s67. 15 Moran CCJ turned to a calculation of the earning capacity of the worker under s40 of the Act. He noted that it was agreed that the worker, had she not been injured, would have earned $653 per week. He indicated that he was not satisfied that her earnings as a security officer during the 6 week period she worked for Lithgow Security were a measure of her earning capacity in the 5% years since 20 the injury had occurred. Nevertheless, he took the view that she was able to earn more than she had earned during the periods of work for the Army Reserve or Grace Bros. He concluded that from 1 October 1991 until 31 December 1994 she was capable of earning, in some suitable employment, approximately $380 per week and from 1 January 1995 to the hearing, approximately $420 per week. 25 S49 S40 of the Act is concerned with the determination of the weekly payment of compensation to an injured worker in respect of any period of partial incapacity. S40(2) provides that the reduction in the worker's weekly earnings is the 30 difference between: (a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment... and 35 (bd) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury... Once this amount had been determined, the judge must exercise the discretion contained in s40(1) of the Act and determine the amount that is proper in the circumstances. 40 _ The steps required in an application under s40 may be summarised in the following way: a) determination that the plaintiff is partially incapacitated for work; b) calculation of the sum required by s40(2)(a); c) calculation of the sum required by s40(2)(b); 45 d) deduction of the figure arrived at in (c) from the figure in (b); e) the determination, under s40(1), of the amount that appears proper in the circumstances of the case. THE DISPUTE Counsel for the appellant did not dispute the finding of a 15% impairment to 50 the worker's back. He argued, however, that the trial judge misdirected himself in finding that, merely by reason of her inability to perform the whole of her 4 UNREPORTED JUDGMENTS pre-injury tasks, the worker was partially incapacitated for work reasonably available to her in the open labour market. The several months of work, including over-time, at Lithgow Correctional Centre and the six week period of work for Lithgow Security demonstrate, in the appellant's view, the amount the worker was able to earn 'in some suitable employment, from time to time after the injury' (as required by s40(1)(b)). Based upon the finding of a 15% permanent impairment of the worker's back, the conclusion of partial incapacity was well open to his Honour. It was a finding of fact and discloses no error of law. Having found that the worker experienced a partial incapacity, his Honour considered the amount (ie the s40(2)(a) amount) that the worker would probably have been earning, but for the injury. There was apparent agreement that she would have been earning $653 per week. In calculating the s40(2)(b) amount, his Honour was not prepared to take the worker's earnings as a security officer as a measure of her earning capacity over the whole five and a half years since October 1991. In his view it was 'just a special job at a special time.'[AB 148 V] His Honour then determined an amount that the worker was able to earn in some suitable employment or business open to her on the labour market. He found that between 1 October 1991 and 31 December 1994 she would have been able to earn approximately $380 per week and from 1 January to date she would have been able to earn $420 per week. These were figures open to his Honour taking account of the evidence and applying his own special knowledge of wage rates in the market place. For my part, I can see no error on the judge's approach. His Honour determined that the plaintiff was partially incapacitated, then calculated the sums required by s40(2)(a) and s40(2)(b) and, finally, made a determination of an amount that appeared proper in the circumstances. In my opinion, it cannot be said that the discretion miscarried. The circumstances of the case did not require detailed reasons for the exercise of the discretion, which is a wide one. It is apparent from his reasons that his Honour did not think that any further discounting was appropriate under s40(1). A fair reading of the judgment reveals that each of the steps was followed, the discretion under s40(1) clearly and properly exercised and no extraneous matter was taken into account, R v Australian Broadcasting Tribunal; ex parte 2 HD Pty Ltd (1979) 144 CLR 45 at 49. As discussed in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, care needs to be taken not to 'double-up' consideration of factors in the s40(2)(b) step, when the discretion is exercised. As to the ground of appeal which alleges a failure to give adequate reasons, it seems to me abundantly clear that his Honour gave sufficient reasons. In my opinion, he sufficiently exposed his essential reasons for being satisfied that the respondent had established her entitlement to an award. It follows that even if leave to amend the notice of appeal was granted, the appeal should be dismissed. I propose the following orders: 1. Leave to amend notice of appeal refused. 2. Appeal dismissed with costs. The orders of the court are: 1. Leave to appeal the notice of appeal is refused. 2. Appeal dismissed with costs. Counsel for the appellant: J Poulos QC/L Ellison URJ DEPARTMENT OF CORRECTIVE SERVICES v SMITH (Stein JA) Solicitors for the appellant: Hunt & Hunt Counsel for the respondent: J Hislop QC/D Baker Solicitors for the respondent: Higgins & Higgins