Reported Decision : [2000] 21 NSWCCR 34 New South Wales Court of Appeal CITATION : Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 FILE NUMBER(S) : CA 40847/99 HEARING DATE(S) : 3 October 2000 JUDGMENT DATE : 23 October 2000 PARTIES : Matthew Hall Pty Ltd - Appellant Cameron Smart - Respondent JUDGMENT OF : Mason P at 1; Powell JA at 2; Giles JA at 3 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 17968/97 FILE NUMBER(S) : LOWER COURT Hughes CCJ JUDICIAL OFFICER : COUNSEL : H N Kelly - Appellant R I Goodridge - Respondent SOLICITORS : A O Ellison & Co - Appellant Firths - Respondent CATCHWORDS : WORKERS COMPENSATION - eye injury - whether condition at trial caused by injury - whether due in part to condition existing before injury - if so what deduction from s 66 compensation pursuant to s 68A Workers Compensation Act - held no pre-existing condition - no deduction - assessment of s 67 compensation at 50% of a most extreme case - whether question of fact or law - held in manner argued was question of fact. D. DEDUCTION PURSUANT TO S 60A: D'Aleo v Ambulance Service of New South Wales (NSWCA 12 March 1996, unreported); Government Cleaning Service v Ellul (1996) 13 NSW CCR 344. QUESTION OF LAW OR FACT: Attorney-General for the State of New South Wales v X (2000) NSWCA 199; LEGISLATION CITED : Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR139; Brutus v Cozens (1973) AC 854; Dell v Dalton (1991) 23 NSWLR 528; Dennis v Watt (1932) SR (NSW) 32; Galley v Pasminco Mining Ltd (1993) 9 NSWCCR 288; Hope v Bathurst City Council (1980) 144 CLR 1. DECISION : Leave to file amended notice of appeal granted. Appeal allowed in part, order for payment of interest set aside, appeal otherwise dismissed. Appellant to pay respondent's costs of the appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40847/99 CC 17968/97 MASON P POWELL JA GILES JA Monday 23 October 2000 MATTHEW HALL PTY LTD v SMART JUDGMENT 1 MASON P: I agree with Giles JA. 2 POWELL JA: I agree with Giles JA. 3 GILES JA: This is an appeal from an award of compensation under the Workers Compensation Act 1987 ("the Act"). Pursuant to s 32(1) of the Compensation Court Act 1984, it is relevantly limited to an appeal "in point of law". The award 4 On 23 October 1990 Mr Cameron Smart ("the worker"), then an apprentice plumber aged 19 employed by Matthew Hall Pty Ltd ("the employer"), was drilling over his head through metal decking into a concrete slab in order to suspend pipework. Although he was wearing goggles, swarf from the metal went into his right eye. The metal was hot and the eye was painful. First aid was given, and the next day the worker attended Sydney Eye Hospital where the metal was removed from his eye. He wore an eye patch for a few days and took antibiotic eye drops. 5 When the eye patch was removed the worker noticed blurry vision in his eye, which had previously had good vision. He returned to work, thinking that the injury would heal over time. He completed his apprenticeship, continued to work for the employer for some years, and then moved on to other plumbing employment. The blurry vision remained, neither getting better nor getting worse. 6 In May 1997 an optometrist whom the worker consulted about his vision suggested that he could be entitled to compensation. On 1 October 1997 the worker applied in the Compensation Court for lump sum compensation from the employer pursuant to ss 66 and 67 of the Act for 85 per cent loss of sight in his right eye and for pain and suffering. 7 The application was heard by Hughes CCJ on 9 March and 27 May 1999, and judgment was given on 8 October 1999. Two ophthalmic surgeons gave evidence, Dr Michael Delaney for the worker and Dr Con Moshegov for the employer. Dr Delaney provided reports dated 7 July 1997 and 9 March 1999, and Dr Moshegov provided reports dated 16 November 1998 and 6 April 1999. Both doctors gave oral evidence on 27 May 1999. 8 Although Dr Delaney had initially though otherwise, as at 27 May 1999 there was agreement that the worker currently had the condition of keratoconus in his right eye. His left eye was unaffected. The condition was described by Dr Delaney - "The keratoconus is a condition where the cornea, which is the front clear part of the eye like the watchglass, becomes distorted and bows out. If you make an analogy, it is more like a rugby ball than a soccer ball, that a rugby ball that is firmly pumped up has astigmatism and the shape is different in one plane to the other plane, but it's got a regular shape, and you can devise an optical lens to match that and improve the vision. If you let air out of the rugby ball and it distorts, you can't get a lens to match that, and keratoconus is like the rugby ball that is astigmatism but distorted as well." 9 The trial judge said that "having both surgeons reach a conclusion that the applicant suffered from keratoconus, the question then became, how did this disease manifest itself". Keratoconus is a congenital condition, usually involving slow change over a number of years until stabilising at about the age of thirty. Sudden onset of the condition is unusual. In the words of the trial judge, "the disease that the applicant presently suffered from, could have arisen naturally without any intervening mechanism". Equally, according to Dr Delaney the congenital predisposition to keratoconus might never manifest itself, as it had not manifested itself in the worker's left eye: the trial judge noted this in the words, "Dr Delaney's view was that the keratoconus can be asymptomatic and latent, and not arise at all. The patient may simply have a proclivity for it, and it never manifests itself". Hence, as Dr Delaney explained, the condition can be unilateral or bi-lateral, and if bi-lateral may be asymmetrical in that one eye changes more than or at a different time from the other eye. 10 Although he did not expressly say so, it is evident that his Honour accepted Dr Delaney's explanations of the condition. 11 Thus it was necessary to ask whether the worker's current condition of keratoconus was caused by the incident of 23 October 1990, or was a manifestation of the condition occurring in the normal course. The doctors held differing opinions. 12 Dr Moshegov considered that the worker's condition was "in no way related to his relatively minor injury". It is apparent that his opinion was influenced by the fact that the worker first consulted an optometrist about blurry vision some five years after the incident "and that it was only when it was pointed out to him that there may be an association between the injury in 1990 and the reduction in his vision as detected 5 years later that he put the two together". He agreed, however, that if the worker had had perfect vision in his right eye immediately before the incident and had suffered an immediate deterioration of the vision in the right eye with no further deterioration thereafter, then the probability was that the "trauma did in fact cause the keratoconus to become symptomatic and it might not have become symptomatic". This was then qualified, in that Dr Moshegov considered that "the trauma", that is, the position and depth of the damage to the eye from the metal as he understood it to have been, was insufficient to have any real effect. 13 On similar assumptions, namely good eyesight immediately before the incident, blurry vision straight after the incident, and no worsening thereafter, Dr Delaney considered that "the trauma has exacerbated or - and accelerated the onset of his keratoconus". His evidence continued - "Q. Given that there has been no symptoms [sic] in the left eye, are you able to say on the balance of probabilities what would have occurred or may have occurred in his right eye but for the trauma? A. It's difficult to be dogmatic because keratoconus does have an unpredictable course, but the suddenness of the change in vision makes me believe that the incident affected his keratoconus, causing deterioration in it. It's the sudden change that I think is the important bit there, not a slow gradual change. … Q. Then doctor, given the sudden onset and the absence of any symptoms in the left eye, and given that the applicant is turning 29 later this year, are you able to say on the balance of probabilities whether or not the current state of vision of the right eye would not have occurred but for the trauma. A. I can't say that it would not have occurred, but I think on the balance of probabilities it's more likely to have been made - his vision is more likely to have been made worse because of the trauma, and without anything else in there, I believe that it's more - if there's a benefit of doubt it should be given to him because of the close relationship in time between the onset of his symptoms of poor vision and the trauma. It's one of those conditions where one can not be absolute and dogmatic, but I support that view. Q. Are there degrees of loss of vision associated with keratoconus found from person to person? A. Yes, there is. Q. What about the possibility that the trauma has worsened the end result, as it were? A. That's quite possible, yes." 14 A little later, after explaining that astigmatism could be corrected by a procedure by which two cuts were made in the rugby ball and the pressure caused it to blow out and become round like a soccer ball, Dr Delaney said - "What I believe has happened in Mr Smart's case is that he had a predisposition to keratoconus with an eye more like the soccer ball, like his left eye at that time, and he had a cut placed in that eye like the soccer ball, and it has then distorted and changed shape in the same - using the same mechanism that is used surgically to correct astigmatism." 15 In the view of the trial judge, his choice between the competing opinions of Dr Moshegov and Dr Delaney came down to "a matter of the applicant's credit", meaning that important to it was his acceptance of the worker's evidence of good eyesight immediately before the incident, blurry vision straight after the incident, and no worsening thereafter. He said that he accepted the worker as a truthful witness, and found that before the incident the worker had "normal and near perfect vision" and that "thereafter he had blurred vision and that that blurred vision remained with him". He preferred the opinion of Dr Delaney, and expressed his conclusion and its consequences - "I therefore find that on the balance of probabilities that the incident on 20 [sic: 23] October 1990 more likely than not triggered off the disease of keratoconus, and therefore it was an injury pursuant to the Act, and it exacerbated and accelerated the condition, and there will be [an] award for the applicant. I find for the applicant that his pre-existing condition of keratoconus was made asymptomatic [sic: symptomatic] by the injury. There is no argument that the uncorrected loss of use of his vision in his right eye is 85 per cent, and that will be the award for the applicant. Turning to s 67, bearing in mind the applicant's age, and the short period of pain, and the possibility of some vision correction, and the long life span of the applicant with damaged sight, especially to depth perception, and the distress and anxiety it will cause him, I find that a proper proportion of a most extreme case is 50 per cent." 16 The awards were of $32,895 pursuant to s 66 of the Act and $24,200 pursuant to s 67 of the Act. The latter sum was apportioned equally between the past and the future, and the trial judge said - "The respondent is to pay the applicant interest pursuant to the Jamberoo Schedule from 8 July 1997 when the claim was made to date. The parties have leave to me to apply to me if they cannot agree on interest." Amendment of the grounds of appeal 17 The employer applied for leave to file an amended notice of appeal containing three grounds in place of the original notice of appeal containing seven grounds. One of the three grounds arguably took up one of the seven grounds, the other two grounds in the amended notice of appeal were new. The worker opposed the grant of leave as to one of the new grounds, that to do with interest, and submitted that if the amended notice of appeal were filed the appeal would be incompetent because it would not be an appeal in point of law; as well, he said that the monetary threshold in s 32(4)(c) of the Act would not be met and that leave to appeal would be required. 18 On investigation, it became apparent that the monetary threshold would be met, and whether the appeal was in point of law was best considered as part of the substantive appeal. In the manner later described, agreement was reached on disposing of the appeal as to interest. Leave to file the amended notice of appeal should be granted. Section 68A of the Act 19 The first ground of appeal was that the trial judge - " … erred in not deducting from the amount awarded pursuant to section 66 for the loss of sight in the right eye an amount in accordance with Section 68A of the Workers Compensation Act 1987 due to the pre-existing condition of keratoconus." 20 So far as presently material, s 68A of the Act provides - "68A(1) In determining the compensation payable under this Division for a loss, there is to be a deduction for any proportion of the loss that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under this Division) or that is due to any pre-existing condition or abnormality. (2) The proportion of a loss that is required to be deducted because of subsection (1) is the deductible proportion for that loss. … (6) If there is a deductible proportion for a loss but the extent of the deductible proportion (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding litigation) that the deductible proportion for the loss (or the relevant part of it) is 10 per cent of the loss, unless this assumption is at odds with the available evidence. (7) The reference in subsection (6) to medical evidence is, in the context of court proceedings, a reference to medical evidence properly admitted in the proceedings or accepted or preferred by the court." 21 The trial judge did not in his reasons refer to s 68A or to deduction of a deductible proportion. The employer's amended answer as filed had not raised it, nor had it been raised in the employer's submissions in chief. It was raised at the conclusion of the worker's submissions, which were not followed by any submissions in reply from the employer. According to the transcript - "HIS HONOUR: Very well. What about, do I have to consider 68A then if we suppose it is degenerative, it is not pleaded, I do not suppose. What do you say about that then? Can I, I'd that my? [sic] MR CALLAWAY: If it is relevant, your Honour, 10 per cent, but if it is relevant, I have just, off the top of my head, your Honour. It is not being pleaded, I do not - HIS HONOUR: You concede that it did - MR CALLAWAY: I do not recall what section 68A says, about impaired sight, if anything. HIS HONOUR: No, no. I am talking about pre-existing condition. MR CALLAWAY: Yes, your Honour. I am just not in a position to conceded [sic] that it applies, you know to site [sic] cases. It is GHT. MR MENARY: It applied to all section 66, as I understand it, your Honour. HIS HONOUR: Yes - MR CALLAWAY: I think that is probably right, your Honour. HIS HONOUR: It just says 'In determining a compensation payable under the provision for a loss there is to be a deduction for any proportion of the loss that is due to any previous injury, whether or not the injury, compensation is paid or payable under the Act or that it is due to any pre-existing condition or abnormality. MR CALLAWAY: 10 per cent, your Honour, and your Honour, I do not need to take your Honour through the transcript in relation to complaints because the loss appears to be 85 per cent - HIS HONOUR: Yes. I do not know whether that is - MR CALLAWAY: There does not seem to be much dispute about that. HIS HONOUR: No. Do I take the corrected vision, 35 per cent? MR CALLAWAY: No, your Honour. HIS HONOUR: I do not know about that. Why do I not take that? MR CALLAWAY: Because your Honour does not take into account the use of any prosthesis or anything like that. HIS HONOUR: Very well." 22 The transcript is occasionally corrupt, and may not be complete. As much from what was not said as from what was said, there was something close to a concession by the employer that there could be no more than the assumed deductible proportion of 10 per cent of the loss, and perhaps something close to a concession by the worker that there should be such a deduction. The trial judge, however, may well have thought that the employer was not contending for a deduction - the employer certainly showed little interest in it. As will be seen, his Honour clearly enough did not have s 68A in mind when expressing his findings. The uncertainty is such that the parties should not be regarded on appeal as having made the concessions, and the matter should be dealt with on its merits. It is unfortunate that his Honour was not given greater assistance by counsel, who seem to have been taken unawares when the judge drew attention to s 68A. 23 The employer's primary submission on appeal was that there should have been a deduction for a deductible proportion found in 50 percentage points out of the 85 per cent loss of sight in the eye pursuant to s 68A(1). It argued that, although the trial judge had found a loss of 85 per cent of the vision in the right eye, in the opinion of Dr Delaney the loss of vision in the eye directly related to the incident was 35 per cent: so, it was said, the remainder of the loss of vision must have been due to a pre-existing condition of keratoconus. If the submission were accepted, the award pursuant to s 66 of the Act should have been $13,545 rather than $32,895. 24 In my opinion, the submission is founded on a misconception of the evidence of Dr Delaney. 25 The employer relied on a passage in Dr Delaney's report of 9 March 1999 - "It must be noted that the loss which is assessed at 85% of vision without a spectacle correction had occurred because of his high grade myopic astigmatism and this is a physiological event, whereas the loss of the best corrected vision, which is 35% of the right eye, I believe is directly related to the above incident causing an exacerbation of his pre existing corneal problem. Whether this corneal problem is labelled keratoconus or high grade myopic astigmatism is irrelevant as this is an underlying condition which has been exacerbated and changed by his injury, and the timing of the onset of this loss of vision, based on the history obtained, relates to [sic] the change in his vision to the incident." 26 At this time Dr Delaney preferred the diagnosis of myopic astigmatism to the diagnosis of keratoconus, being persuaded of the latter diagnosis by information in Dr Moshegov's report of 6 April 1999. For present purposes, that does not matter. Dr Delaney was not attributing only 35 per cent loss of vision in the right eye to the incident on 23 October 1990. Rather, he was distinguishing between the uncorrected loss of vision, assessed at 85 per cent, and the loss of vision after best correction, that is, with glasses or a contact lens. Dr Delaney explained the 85 per cent and 35 per cent in his oral evidence - "Q. You made reference in your reports, in particular the second of your reports, to 85 per cent loss of vision as compared to his corrected vision of 35 per cent. A. Yes. Q. Are you able to clarify that? A. The way vision is assessed is based on a scale that's been devised by the Royal Australian College of Ophthalmologists, and Mr Smart was unable to see the top line of the chart without glasses, and that gives him his uncorrected - or he could just see the top line - gives me his uncorrected loss. With the best spectacle correction, however, he could only get to the sixth-twelfths line partly, and that equates to a 35 per cent loss of vision, and it means that because of the distortion in his cornea, even with the best spectacle lens, he cannot get normal vision, so that's why there is a 35 per cent loss with the spectacle correction." 27 Hence the trial judge expressed his finding as an uncorrected loss of vision. The 85 per cent loss of vision was still related to the incident of 23 October 1990. 28 The employer's secondary submission was that, at the least, there should have been the deduction of a deductible proportion of 10 per cent of the loss pursuant to s 68A(6). It argued that the keratoconus was a pre-existing condition; that some proportion of the loss had to be due to it; that it was difficult to determine the proportion of the loss; and that a finding of a deductible proportion for the loss of 10 per cent of the loss was not at odds with the evidence. If the submission were accepted, the award pursuant to s 66 of the Act should have been $29,606 rather than $32,895. 29 Section 68A in its present form was included in the Act in 1996, replacing a provision broadly to the same effect but limited to loss being permanent impairment of the back, neck or pelvis. There were differences in expression, but the structure and language of the original s 68A(1) were similar to that of the current s 68A(1) so far as it denied compensation of a deductible proportion, being - " … any proportion of the loss that is due to: (a) a previous injury for which compensation has been paid or is payable under this Division, or (b) any other previous injury or any pre-existing condition or abnormality." The equivalent to the current s 68A(6) was then s 68A(8). 30 The background to the original s 68A, in the decisions referred to in the passage next set out, was explained in D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unreported). In that case the appellant had pre-existing degenerative changes to her back, although they were asymptomatic. It was argued that a pre-existing condition which was asymptomatic and had not resulted in any prior impairment in the sense of physical disability or incapacity was insufficient to attract s 68A. Cole JA, with whom Handley JA and Cohen AJA agreed, said - "The terms of s 68A(1) are in my judgment tolerably clear. The employer who is liable in respect of an injury causing permanent impairment of the back, neck or pelvis is not liable in respect of 'any proportion of the loss that is due to' the factors referred to in (a) and (b). The circumstances referred to in (a) are those in respect of which compensation has been paid or is payable under Division 4. The approach of the courts in Rodios v Trefel [(1937) 11 WCR NSW 285], King v Hayward [(1943) 67 CLR 488] and TAFE v Pitt [(1993) 9 NSWLR CCR 309] is negated. However the legislature went further by enacting (b). Prior non-compensable injuries, pre-existing conditions or abnormalities result in a deductable [sic] proportion being determined for which the employer liable in respect of the injury causing the permanent impairment of the back, neck or pelvis is not to be responsible. The words 'any pre-existing condition' in my view include a degenerated back caused by the advent of age. Insofar as the permanent impairment of the back as found is due to that pre-existing condition, an appropriate deduction for the effects of the pre-existing condition is to be made. In the circumstances mentioned in subsection (8), it is 10%." 31 In Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at 349 it had been said that s 68A(1) was not concerned with any pre-existing condition or abnormality which was not causing any permanent impairment. Cole JA went on in D'Aleo v Ambulance Service of New South Wales to explain that, read in context, this meant that unless the pre-existing condition was a contributing factor causing permanent impairment, s 68A(1)(b) had no application; so read, it was consistent with the view his Honour had earlier stated. In the result, therefore, it did not matter that the pre-existing condition had been asymptomatic, provided that the permanent impairment of the back as found was to some extent due to the pre-existing condition. 32 The same, in my view, must be said as to the current s 68A(1). It does not matter that the pre-existing condition was asymptomatic, and if the loss is to some extent due to the pre-existing condition there must be deduction of the deductible proportion for that loss. But it is necessary that the pre-existing condition was a contributing factor causing the loss. And, of course, it is necessary that there was a pre-existing condition. 33 In the present case there are three possibilities - (a) while the worker had a genetic pre-disposition to keratoconus, prior to the incident of 23 October 1990 he did not have the condition of keratoconus: on this basis, s 68A(1) does not apply; (b) prior to the incident of 23 October 1990 the worker had the condition of keratoconus, although it was asymptomatic, but the loss of vision was not due to any extent to that condition; again, on this basis s 68A(1) does not apply; and (c) Prior to the incident of 23 October 1990 the worker had the condition of keratoconus, although it was asymptomatic, and the loss of vision was to some extent due to that condition; on this basis, s 68A(1) applies, and if the circumstances addressed by s 68A(6) obtain there must be a deduction of 10 per cent of the loss. 34 If prior to the incident of 23 October 1990 the worker had the condition of keratoconus, although it was asymptomatic, it would not be easy to prefer (b) over (c): it would be clear enough that the injury made the condition symptomatic by accelerating the loss of vision or aggravated the extent of the loss of vision upon the condition becoming symptomatic in the normal course. But was there a pre-existing condition within the meaning of s 68A(1), equivalent to the degenerative changes to the back in D'Aleo v Ambulance Service of New South Wales? In accordance with the evidence of Dr Delaney, even though the worker had a congenital predisposition to keratoconus it may be that he would never have experienced progression to loss of vision, as appeared to be the case for the worker's left eye. 35 Not surprisingly when counsel appeared to have overlooked s 68A, the evidence did not specifically address this question. So far as Dr Delaney referred to exacerbation of the worker's keratoconus, and to the incident "affecting his condition of keratoconus, causing a deterioration in it", it might be thought that he had in mind a pre-existing condition. But he also referred to acceleration of the onset of the worker's keratoconus, to the incident causing the deterioration in vision, and to the close relationship in time between the "onset of the symptoms of poor vision and the trauma". In his report of 7 July 1997 he referred to the keratoconus as "a degenerative condition of the cornea", suggesting that until degeneration there was no condition. Reading his evidence as a whole, and with an understanding of his reasoning to the opinion that on the probabilities the worker's current condition of keratoconus was caused by the incident of 23 October 1990, in my view Dr Delaney considered that the congenital pre-disposition had not progressed to any loss of vision until the incident and that it may well not have progressed to loss of vision at all but for the incident. 36 Also not surprisingly in the circumstances, the findings of the trial judge were not in language apt to determining whether the keratoconus was a pre-existing condition within the meaning of s 68A(1). His Honour found that the incident of 23 October 1990 "triggered off the disease of keratoconus" and "accelerated the condition", which could suggest that there was no pre-existing condition. He also referred to exacerbation of the condition, and said that the worker's "pre-existing condition of keratoconus" was made symptomatic by the injury. There were the words of a pre-existing condition, but neither of the doctors had so expressed themselves. When the trial judge was not dealing with s 68A(1), I do not think that this should be taken as a finding that there was more than a congenital disposition to keratoconus, a pre-existing condition of keratoconus as contemplated in s 68A(1). 37 The employer accepted that it bore the burden of proving that to some extent the worker's loss of vision was due to a pre-existing condition of keratoconus. In my opinion a genetic predisposition to keratoconus is not the same as the condition of keratoconus for the purposes of s 68A(1). I do not think the employer established that there was a pre-existing condition of keratoconus - that is, that there was more than a genetic predisposition to keratoconus which may never have progressed to loss of vision, being a condition of keratoconus albeit an asymptomatic condition. 38 Assuming in the employer's favour that a point of law may be found in that, on its submission, the trial judge was on the evidence bound to deduct a proportion found in 50 per centage points out of the 85 per cent loss of sight in the eye or the 10 per cent of the loss, I do not think that the ground of appeal has been made out. It is unnecessary to consider whether the circumstances otherwise fell within s 68A(6). Pain and suffering 39 The second ground of appeal was that the trial judge "awarded an excessive amount for pain and suffering pursuant to section 67 of the Workers Compensation Act". 40 Under s 67 of the Act a worker who has suffered a compensable loss is entitled to receive compensation "for pain and suffering resulting from the loss" (s 67(1)). Pain and suffering resulting from the injury is distinguished from pain and suffering suffered from the loss (s 67(1A)), and in the present case the worker's entitlement was to compensation for pain and suffering resulting not from the injury when the metal went into his eye but from the loss of vision. For the purposes of s 67 pain and suffering means actual pain or distress or anxiety suffered or likely to be suffered by the worker, whether resulting from the loss or from any necessary treatment (s 67(7)). A maximum amount of compensation is prescribed (s 67(1)), at the relevant time being $48,400. It is payable only in "a most extreme case", and the amount payable in any other case is to be reasonably proportionate to the maximum amount "having regard to the degree and duration of pain and suffering and the severity of the loss or losses" (s 67(2)). 41 The trial judge's reasons for arriving at a proportion of 50 per cent of a most extreme case were economical, no more than as found in the passage expressing his conclusion and its consequences earlier set out. The employer's complaint was not, however, that the reasons were inadequate. It submitted that there was but limited evidence as to pain and suffering, that the actual pain was short-lived and the distress and anxiety was minimal, and that the amount reasonably proportionate to the maximum amount could not exceed (in the event that the 85 per cent loss of vision was undisturbed) 15 per cent of the maximum amount. If this ground of appeal were upheld, the award of $24,200 would be reduced to $7,260. 42 The difficulty for the employer is the restriction of its appeal to an appeal in point of law. The explication of the restriction in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 is well known, and the employer did not submit that what was there said should be reconsidered. In brief, a finding that is against the evidence, unreasonable, or even thought to be perverse, does not involve error of law, although a finding for which there is no evidence capable of proving the fact or an ultimate finding not open on the primary findings of fact may involve error of law. How does the restriction apply to an award of compensation pursuant to s 67 of the Act? 43 In Azzopardi v Tasman UEB Industries Ltd Glass JA said (at 156-7) - "Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogically or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council [(1980) 144 CLR 1] (at 10); Australian Gas Light Co v Valuer-General [(1940) 40 SR (NSW) 126] (at 138; 150). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." 44 The words "because no other application is reasonably open", and the reference to correction of perverse or unreasonable application of law to the facts found, must be read in the light of the preceding statement that an erroneous conclusion at the third stage will ordinarily be an erroneous conclusion of fact. Glass JA had earlier (at 156) cited Hope v Bathurst City Council (1980) 144 CLR 1 and Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 for the proposition that "an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made". It is evident that his Honour was referring back to this, and that by unreasonable application of the law to the facts or application not reasonably open he meant that the facts were necessarily within or outside the statutory test. Importantly, his Honour did not regard "unexplained perversity of result" as an error of law, it seems because in the absence of explanation it could not be said that the perverse result was due to legal error at the second stage or legal error in the marginal case at the third stage rather than error of fact at the first or third stage. 45 In Hope v Bathurst City Council a distinction was drawn, in relation to whether the facts fell within or outside the words of a statute, between words requiring construction and words to be given their ordinary meaning. So it was said (at 7) that whether facts fully found fell within the provisions of a statutory enactment properly construed is a question of law, but - "However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [(1973) AC 854] was just such a case. The only question raised was whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact." 46 I apprehend that Glass JA accommodated the first of these situations in the second stage to which he referred. In the present case the law as found in s 67(2) used ordinary English words, subject to the statutory qualification on pain and suffering, in particular as to reasonable proportionality. The question was not so much whether the facts fell within or outside a statutory test as the proportionality to be attributed according to the statutory direction to the worker's pain and suffering. That was a question of the same nature as the question in Brutus v Cozens. 47 In determining the award of compensation pursuant to s 67 of the Act the trial judge had to assess the degree and duration of pain and suffering and the severity of the worker's loss, and then place it in a scale of reasonable proportion to a most extreme case. The former exercise is one of fact, and where (as in the present case) there was evidence as to the worker's pain and suffering and his loss there could be no error in point of law even if the trial judge's assessment were regarded on appeal as excessively generous or miserly, or even perverse. The latter exercise will ordinarily also be one of fact, turning on the factual assessment of the worker's pain and suffering and the hypothetically factual pain and suffering in a most extreme case and calling for judgment explicitly on a question of degree. It will be akin to the exercise when determining whether there has been negligence, described by Jordan CJ in Dennis v Watt (1932) 32 SR (NSW) 32 at 32 as "essentially one of degree". In a passage cited by Spigelman CJ in Attorney-General for the State of New South Wales v X (2000) NSWCA 199 at [128], Jordan CJ continued - "From certain findings of fact it would necessarily follow, as a matter of law, that an accused person had been negligent; from others, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend on the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been decided because some legal principle has been wrongly applied." 48 As was correctly said by Johns CCJ in Galley v Pasminco Mining Ltd (1993) 9 NSWCCR 288 at 297, using the same words as were used by Handley JA in relation to a similar requirement of proportionality under the Motor Accidents Act 1988 in Dell v Dalton (1991) 23 NSWLR 528 at 533, an award pursuant to s 67 of the Act "involves questions of fact and degree, matters of opinion, impression, speculation and estimation calling for the exercise of commonsense and judgment". There would be error by the trial judge in point of law only if, on his assessment of the worker's pain and suffering, it necessarily followed that the reasonable proportionality was more or less than 50 per cent of a most extreme case. It would have to be a marginal case as referred to by Glass JA in Azzopardi v Tasman UEB Industries Ltd, not in the sense that it was borderline but in the sense that it was beyond the boundary: to adapt the words of Jordan CJ, the trial judge would have to have gone outside the "broad limbo" within which, upon his assessment, the reasonable proportionality would depend upon the view taken of the relative pain and suffering. 49 The trial judge indicated, without detail, the matters he took into account. Contrary to the employer's submission, I consider that he was entitled to find distress and anxiety from the loss of vision although the worker's evidence was not in those terms or voluminous. There was no appeal as to inadequacy of reasons. The trial judge found pain and suffering, and may have assessed the degree and duration of the worker's pain and suffering and the severity of his loss, on the evidence, at a high level: unless the evidence was incapable of proving the pain and suffering, that factual exercise is immune from review. In striking a proportion of a most extreme case the trial judge was again engaged in a factual exercise. Unless it can be seen that the trial judge arrived at an assessment of the worker's pain and suffering which was necessarily less than 50 per cent of a most extreme case, error in point of law can not be found. It is not enough that the result be thought high, even perverse, because that could have resulted from a high, even perverse, factual finding as to the degree and duration of the worker's pain and suffering and the severity of his loss. 50 Conceivably it could be argued that there was no evidence capable of proving (in the sense employed in relation to error of law) pain and suffering at a level sufficient for a reasonable proportion of 50 per cent, with such insufficiency that (again in the sense employed in relation to error of law) there necessarily had to be a lesser proportion. This was not how the employer's argument was put - indeed, the argument from both parties was far from extensive. I regard the trial judge's award as high, but in my opinion error in point of law has not been shown. Interest 51 The employer's third ground of appeal was that the trial judge "erred in awarding interest". 52 As has been seen, the trial judge said that the employer was to pay interest "from 8 July 1997 when the claim was made to date", giving liberty to apply if the parties could not agree on interest. The formal order of the Compensation Court provided for the payment of interest accordingly. No application was made to the trial judge. 53 The employer submitted that interest had not been claimed in the worker's application, and that it could not be ordered to be paid because the effect of s 109(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 was that the Compensation Court could not order interest on any compensation payable to the worker under ss 66 and 67 of the Act. With a qualification, the worker accepted that this was so. The qualification was that the worker was not in a position to concede that the embargo applied when the injury had been suffered in 1990. 54 Eventually the parties agreed that the order for interest made by the trial judge should be set aside, and that if the worker considered that he was entitled to interest he could apply to the trial judge for an order for interest. This should have been arranged between the parties without being made the subject of an appeal. Orders 55 I propose that leave to file the amended notice of appeal be granted, that the appeal be allowed in part and the order for payment of interest be set aside, but that the appeal otherwise be dismissed; the appellant to pay the respondent's costs of the appeal. __________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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