Tyler v Marsden Industries [2001] NSWCC 194

Reported Decision : (2001) 22 NSWCCR 644

Compensation Court of New South Wales

CITATION : Tyler v Marsden Industries [2001] NSWCC 194 PARTIES : Christopher Tyler Marsden Industries MATTER NUMBER(S) : 57748 of 2000 JUDGMENT OF: Wright C at 1 Assessment of Compensation :- General principles and factors CATCHWORDS: Lump sum compensation for loss of sexual organs following assault Effects upon worker LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: DATES OF HEARING: 14/11/01 DATE OF JUDGMENT: 11/28/2001

FOR APPLICANT: Mr D Dickinson LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Batten

JUDGMENT: 1. This is a sad case of a 51 years old single man, working in a sheltered workshop, who was attacked on the way home from work on 6 August 1997 and suffered severe injuries to his testicles that required their removal in two separate surgical procedures (orchidectomies). He has been paid the maximum sum of $47,000 for loss of sexual organs under s 66 of the Workers Compensation Act for loss of sexual organs (testicles) and now seeks, through his next friend, compensation for pain and suffering under s 67 for such permanent loss. 2. The proceedings were brought on behalf of Mr Tyler by his next friend and tutor appointed by the Court, Mr Robert Brassell, who is a step-brother of the worker. 3. The parties concluded that the worker was incapable of giving useful information about his own experiences. Mr Gilandas, clinical psychologist, who was asked to assess the worker, spoke of Mr Tyler's difficulties in articulating his condition. Evidence was led from Mr Brassell about the worker's life skills, enjoyments and activities before and after the journey incident which occurred at Blacktown Railway station. This evidence was supplemented by copious medical and hospital records. 4. It was not disputed that before the assault, the worker had lived with his aged mother Mrs Rafferty and attended a sheltered workshop on week days. Mr Brassell, who had regular contact with the worker, spoke of a person with a happy, pleasant demeanour, who enjoyed the company of his work friends and family. He enjoyed listening to music, and going to work, special club outings and dances. Mr Brassell said he could understand the worker's verbal communications with patience. After the traumatic events of the assault and the operations, the worker became disturbed and withdrawn, he ceased going to work and had a reduced interest in outings. He cried a lot "for no apparent reason". He appeared to be concerned for his personal security. He draws the curtains and is reluctant to allow access to his living quarters. Fifteen months ago, due to Mrs Rafferty's advancing age, Mr Brassell and his family arranged for his mother and step-brother to be relocated to a retirement village complex, where Mrs Brassell can have care and where Mr Tyler is accommodated in a self-care unit. The complex is accessible to the worker's former place of employment, but he is reluctant to attend. Following this change of behaviour, Mr Tyler has had fewer opportunities for exercise, such as he had on the work journeys and on casual walks to local shops. He has experienced increased weight with apparent binge eating and reduced activity levels, from 17 stones to about 22 stones. Mr Tyler has had to undertake hormone replacement therapy with his loss of testes. 5. In cross-examination Mr Brassell agreed that the worker is able to care for himself in his present residence. Mr Tyler may not evidence an interest in going to work but he does travel alone to Westmead Hospital for treatment of an unassociated medical condition. 6. Dr Sergio Martin, GP, treated the worker from the day of injury. He observed a swollen left testicle. The worker subsequently had difficulty passing urine and was referred to Blacktown Hospital. In August 1999 Dr Martin, after outlining the worker's medical history, concluded that Mr Tyler was fit to return to sheltered workshop activities. 7. The hospital notes chronicle the events and the professional observations about the worker. The worker presented to the hospital with painful testes and penis. An ultrasound diagnosed an infracted left testicle, and this was removed by orchidectomy. The worker developed complications of a scrotal abscess and then underwent a right orchidectomy. He developed a deep vein thrombosis in the left popliteal vein in October 1997 and was treated with drugs and surgical stockings. The worker appears to have endured much pain and discomfort after injury and prior to the second operation and for a time thereafter, with some complications to the operations. The worker was discharged from hospital on 8 October 1997 after the second operation. 8. Dr Chris McMahon, sexual health physician, in September 2001, opined that the worker appeared to experience no obvious pain when climbing onto the examination couch. The consequences of the loss of testes included a lifelong testosterone deficiency, loss of procreative capacity and life long scrotal deformity. The testosterone deficiency can be associated with lethargy, lack of motivation and depression, weight gain and loss of bone and muscle mass. The worker had an increased risk of developing osteoporosis and its sequelae. Adequate HRT was being administered. It was unlikely that his loss of procreative function would have any significant impact on the worker's life. Dr McMahon noted that the worker was afflicted by sleep apnoea, which was unrelated, and from minor congenital heart disease related to Downs Syndrome. He postulated that the pain and suffering that was experienced by the worker prior to his second operation would have been substantial, and his limited ability to report his pain would have resulted in a more severe and sustained level of pain and suffering. The development of chronic depression and subsequent fear and avoidance of socialisation was a testament to the extent of pain suffered by the worker. 9. Dr Alex Gilandas, clinical psychologist, accepted that there had been a history of personality change in the worker since his injury, and opined that Mr Tyler suffered from an adjustment disorder with mixed anxiety and depressed mood. The symptomatology was a direct result of the assault. There had been a loss of confidence in returning to work. There had been a general deterioration in his quality of life and increased health risks due to his obesity. 10. The respondent offered no evidence to rebut the conclusions reached by Dr McMahon and Dr Gilandas. Submissions 11. Mr Dickenson submitted that this was an injury of significant severity to merit a high award under s 67. The worker was a person with a limited ability to communicate pain and suffering, but this did not mean that he did not suffer such experiences. Dr Gilandas pointed to an adjustment disorder with phobic aspects. Dr McMahon referred to the major effects of the injury and loss. 12. Mr Batten pointed out the provisions of s 67(1A) where the Act required the Court to distinguish between injury and loss, with s 67 compensation being payable for the loss or losses. He asked rhetorically whether the depression was related to the circumstances of the attack rather than the loss itself. He conceded that there would have been a lot of pain in the pre-surgery and convalescent periods but suggested that actual pain after this time would have been mild, as evidenced by Dr Galandas' observations. He also drew attention to the main features of the McMahon report. The worker was fit for his pre-injury work, but Mr Batten did not submit that the unwillingness to undertake journeys to work was not connected with his bad experience and the phobic reaction to safety issues. Consideration of relevant factors under s 67 for pain and suffering 13. Sections 67 of the Workers Compensation Act 1987 provides - "67 Compensation for pain and suffering (1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $50,000. (1A) Because there is a distinction between injury and loss resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss. (2) This section does not apply if the compensation paid or payable under section 66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in section 66 (1). (3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses. (3A) (Repealed) (4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Compensation Court. (4A) It is permissible for an agreement as to the amount of compensation to be paid to a worker under this section to provide that the amount to be paid is the proportion of the maximum amount payable under this section that is the same as the proportion of the maximum amount payable under section 66 that is represented by the amount payable to the worker under that section in respect of the loss or losses concerned. This subsection does not prevent an agreement that some other amount is to be the amount to be paid to a worker under this section. (5) Compensation under this section is not payable after the death of the worker concerned. (6) If an amount mentioned in this section at any time after the commencement of this Act: (a) is adjusted by the operation of Division 6, or is adjusted by an amendment of this section, the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury. (7) In this section: