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 After the traumatic events of the assault and the operations, the worker became disturbed and withdrawn, he ceased going to work and had a reduced interest in outings.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: pain and suffering means: (a) actual pain, or distress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment." 14. There are a number of factors and principles to take into account in determining an appropriate amount under s 67 - · Pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical loss and impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering. · The measure of the extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case. · The pain and suffering must result from the loss/impairment and not merely the injury (s 67(1A); Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335). · Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date ( Selimovic v Airfoil Registers Pty Ltd ( 1999) 18 NSWCCR 143). · Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss/impairment is crystallised ( Rico v Roads and Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) NSWCCR 724). · There is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment ( Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640). · The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestley JA at 306C) that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby A-CJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering. · Distress caused by interference with social activities ( Department of School Education v Boyd (1996) 13 NSWCCR 289) or by the effects of the compensable injury on a worker's relationships including marriage ( Pacific Dunlop Ltd v Krivec (1996) 13 NSWCCR 353) can be relevant. · Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing therefrom, as well as the need for medication and difficulty with sleeping ( Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545). 15. In most instances, the Court has the advantage of hearing from the claimant, and weighing the oral evidence with all its poignancy, emotion, levels of articulateness and other factors that will aid the court in its judgment. Claimants in their self-descriptions may be stoic, laconic, dismissive, histrionic, philosophical, lacking in insight or less than proficient in use of language. All these matters have to be taken into account in assessing the claimant and reaching conclusions about the impact of the loss. 16. In this case, the claimant, for all intents and purposes, was mute, so his experiences must be constructed from his observed behaviour and from common experience of the effect that such traumatic events were likely to have on him. Unfortunately the assistance available in making that evaluation is limited. 17. There are a number of alternative theories in this case that may be considered. The worker, by virtue of his cognitive status, may have less suffering than an able person. Alternatively, the worker, because of his more limited range of or capacity for life experiences, may feel more devastated by such an experience. Thirdly, the worker may suffer the same level of emotional distress as an able individual. The third alternative however covers a wide spectrum of human responses and behaviour and there are likely to be differences between individuals to the same experiences. 18. In this matter I have looked to the available medical evidence for some guidance, and have considered the submissions of counsel. 19. It seems that there is little support for the first proposition, that I should treat this applicant any differently from any other man of his age who has suffered from such losses and consequences. The narrower range of pre-injury experiences available to the worker allows the inference that the impact of the permanent injury on his life would be greater than might otherwise be from an emotional point of view. 20. On the question of the physical pain resulting from the injury and the loss, which are inseparable, I am satisfied that the worker suffered severe pain for a limited period of time in 1997 after the assault and during and after his surgical procedures. The pain and the medical procedures which led to the loss also must have been a frightening experience. The inference is open to be made that, after the effects of the surgery wore off, Mr Tyler has been left with discomfort and some pain from time to time, although at a milder level. 21. So far as the emotional distress is concerned, this is the most difficult part of the claim to determine. There is a probability that the worker's future health will be compromised to some degree by the physical effects of his injury, although other unrelated health factors would seem to lead to a reduced life expectancy, and this will lead to added distress. 22. Dr McMahon was clear in his opinion, and there was no other contradictory material, that loss of procreative ability was not a major factor in Mr Tyler's claim. However, the probability is that the worker's enjoyment of life through his happy relationships with his family, work and other friends and his ability to mix in the general community have been dealt a fairly serious blow, and that, as a consequence of his loss and the circumstances thereof, his distress would be significant. With the passage of time, there may be some improvement in this ability to inter-relate with those outside his family. 23. The applicant worker is not a young man. He has been through a fairly severe ordeal and faces life long complications as a result of his compensable injury. In all the circumstances I consider that a payment representing 45 percent of a most extreme case is appropriate in this matter. Award 24. There will be an award in favour of the applicant worker, ordering the respondent to pay $22,500 for pain and suffering, together with the costs of these proceedings as agreed or assessed. Mr D Dickinson instructed by Messrs Coleman & Greig appeared on behalf of the applicant Mr M Batten instructed by Messrs Hicksons appeared on behalf of the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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