Alvorac General Engineering Pty Limited v Arlotta

[1993] HCATrans 277

..

• 'I

• -... ~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S43 of 1993

B e t w e e n -

ALVORAC GENERAL ENGINEERING PTY

LIMITED

Applicant

and

JOSEPH ARLOTTA

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

TOOHEY J

Alvorac 1 17/9/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 SEPTEMBER 1993, AT 10.12 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC:  May it please the Court, I appear

with my learned friend, MR J.L. SHARPE, for the

applicant, the respondent employer below.

(instructed by Vandervords)

MR M.J. JOSEPH:  May it please, the Court, I appear for the

respondent. (instructed by Turner Freeman)

BRENNAN J: Yes, Mr Hughes.

MR HUGHES:  Your Honours, may I first of all hand up .an

outline of what we wish to put to the Court, to

which are attached the relevant statutory

provisions. There are four copies, Your Honours.

BRENNAN J:	Thank you.
MR HUGHES:	Second, may I hand up and seek to rely upon an

amended draft notice of appeal. When I looked at

the draft in the papers, Your Honours, it seemed

that it was in some respects rather non-specific.

So I have had another go at it.

Your Honours, this is a case which, in our submission, attracts the grant of special leave for

these shortly stated reasons: first of all, it

raises a question as to the construction of an

important provision of the Workers Compensation Act

of New South Wales, namely section 67, to which I

will come. The point of construction turns on the

rather unusual expression used as a benchmark for

awarding an amount for pain and suffering in

respect of various schedule injuries, "a most

extreme case".	I will come to the section in a
moment.

The other point which we say attracts the grant of special leave is that the Workers

Compensation Court, Her Honour Judge O'Toole, awarded interest or ordered interest to be paid on

the amount of the award for pain and suffering

under section 67 of the main Act at half the

statutory rate which, at the time, was 17 per cent.

The amount was reduced to reflect the fact that the

pain and suffering in respect of which interest was

capable of being ordered was accruing from time to

time between the date of injury and the date of

trial. What we say, however, is that the

Compensation Court ought to have awarded interest

at the sort of rate approved by this Court in the

case of MBP SA Pty Ltd v Gogic, 171 CLR 657.

There is a third point but it is subordinate

to the other two and, of itself, I could not

suggest that it would possibly attract a grant of

special leave, and that is the failure of the trial

Alvorac 2 17/9/93

judge, countenanced by the Court of Appeal, to

split the award for pain and suffering between pre-

trial suffering and post or future suffering for

the purpose of fixing the amount upon which

interest was to be paid. That is rather, perhaps,

a too brief description of the points involved.	To
develop them, I will have to go shortly to the
relevant statutory provisions.

BRENNAN J: It is, however, sufficient to indicate the

nature of the problems that you wish to ventilate,

Mr Hughes, and they appear to be problems concerned

with the interpretation of a statute which is no

doubt an important statute in New South Wales, but

the points that you seek to raise appear

preeminently to be the sort of points that ought to

be dealt with by the Court of Appeal.

MR HUGHES:  Your Honour, I cannot deny for one moment the

possible force of that kind of proposition as a matter of generality. However, to endeavour to

counter it, may I say this: section 67 - and I

doubt whether Your Honours have had an opportunity

of looking at it in a statutory setting - is a

section which is applied with enormous frequency in

the Workers Compensation Court. I am told by my

junior that in the week during which this appeal

was argued in the Court of Appeal, no less than 20

cases raising these sorts of points were listed and

argued in the Court of Appeal. The volume of cases

going through the Workers Compensation Court in

which section 67 is applied is very large indeed.

I would not give - - -

DAWSON J:  It is largely a question of fact. How would we

assist by looking at the section?

MR HUGHES:  The reason why Your Honours would assist in

looking at the section is, firstly, this - and I

can come to the point very shortly: in the

Compensation Court the view seems to be taken, and

acted on, that it is unnecessary in the formulation

of reasons for making an award under section 67 to

postulate for the particular case the appropriate

benchmark.

DAWSON J:  You cannot, can you? "A most extreme case" may

be different to "the most extreme case", but
certainly when you think of "the most extreme case"

you simply cannot.

MR HUGHES:  Your Honour, there is an array of scheduled

injuries to which section 67 applies and the first

question that arises, and whether this line was

adopted in the courts below is completely obscure,

the first question is when the statute speaks of "a

most extreme case", is it a most extreme case of

Alvorac 17/9/93

the kind of injury with which the worker has been

afflicted or is it, in terms of generality, a most

extreme case. Now, there is one case in the Court

of Appeal where, very briefly - it is unreported -

in which Mr Justice Meagher said, applying the

section on an appeal, granted that a most extreme

case is quadriplegia.

If the duty of the Compensation Court - and

this, we submit, is undoubted - is to articulate

the reasons why it fixes a particular amount in the

scale from a benchmark, it must be incumbent, we

would respectfully submit, upon that court and,

indeed, on an appeal on the question of fact to the

Court of Appeal, to articulate the benchmark from

which, in the particular case, the scaling down

process is to occur. However, in the Court of

Appeal, despite what Mr Justice Meagher said in one unreported case, the view has been taken, and this

in a case called Jones Bros Bus Company, (1992)

26 NSWLR 322, and I need only take Your Honours to

item 3 in the headnote on page 322 - I have copies

of it I will just hand up to Your Honours:

While it is not obligatory on a judge

expressly to refer to the terms of the Workers

Compensation Act 1987, s 67(3), which provides

for the maximum amount of compensation payable

in "a most extreme case", doing so may often

help to avoid error which can arise from the

application of words, thought to be familiar,

but deserving of express attention in each

case.

The only page which I have provided to Your Honours

is that on which the point summarized in the
headnote emerges, that is page 338, in the judgment

of the President, Mr Justice Kirby, at line F:

Next, the appellant complained that

Moroney CCJ had failed properly to apply s 67

in that he had made no reference in his

reasons to s 67(3).

That is the "a most extreme case" subsection.

That subsection refers to the maximum amount of compensation being payable only in "a most

extreme case". The Court was reminded of its

decision, in another context, in Dell v Dalton

(1991) 23 NSWLR 528. It was conceded, on the

basis of that authority, that it was not

necessary to establish "the most extreme

case" -

and I add parenthetically we do not wish to quarrel

with that proposition -

Alvorac 17/9/93

as being at the apex of a descending list of

injuries catalogued according to their

severity. Nevertheless, the appellant argued

that it was mandatorty for a judge of the

Compensation Court, in carrying out the

assessment in the particular case, to bear in

mind "a most extreme case" and to classify the

case in hand by reference to that notion.

We wish, with respect, to challenge that approach

and we do it simply on the basis that in the

Compensation Court it is incumbent upon a trial

judge to articulate his reasons. Now, that does

not mean every step in the process towards

judgment, but it does mean or does require that the

essential steps be articulated so that, in the case

of an appeal which lies to the Court of Appeal as I

have mentioned on a question of fact, the

sufficiency of the approach taken can be

effectively evaluated. If the starting point or

benchmark is not articulated by an attempt to

define what, for the purposes of the instant case,

a judge regards as "a most extreme case", there is

an insufficient statement of the reasons and there

is really no sensible basis upon which an appellate

court can review the primary judge's decision.

BRENNAN J: Would you care to formulate the kind of reasons,

in a case like this, which would satisfy this test?

MR HUGHES:  I will endeavour to do so, Your Honour. The

first question that arises is one of construction

and that is whether "a most extreme case" means a

most extreme case in this class of injury. We

would submit that ought not be accepted as the

right construction, although it is not clear from

the Court of Appeal's reasons - they were unanimous

on this point in upholding the $30,000 award - just

how they approached it.

The alternative would be that it is incumbent upon the judge who hears the case in the

Compensation Court to say, I regard as a most

extreme kind of case an injury such as quadriplegia

or extensive brain damage.

BRENNAN J: That is, I would have thought, a matter of

common experience in the court which deals with so

many cases as this court does. The judges would

have a feel for this which, one would think, does
not require articulation of some formula in each

case, Mr Hughes.

MR HUGHES: Well, Your Honour, that is the point.

BRENNAN J:	I see.
Alvorac	17/9/93
MR HUGHES:	That is the point and I will not go over the

ground again. We say that it is incumbent upon a

trial judge and, indeed, the Court of Appeal in

reviewing the matter, to do as Mr Justice Meagher

did in this unreported case - I will not weary

Your Honours with the judgment, it would take too

long - but it is incumbent upon a court dealing

with this difficult section to state in its reasons

the benchmark from which it proceeds to make the

award.

DAWSON J:  The trouble is that it is always possible to

imagine a more extreme case.

MR HUGHES:  That is part of the difficulty in the operation

and administration of the section.

DAWSON J:  So as His Honour says, it is better to build it

up case by case, rather than attempting some

definition, and this Court would be incapable of

giving one.

MR HUGHES:  I am not asking for a definition, with respect,

Your Honour; all I am asking is that this Court, if

it has an extensive look at the statutory

provisions, say that more must be done than was

done in this case and done in the direction that I

have endeavoured to point out. That is the first

point and I do not think I can do any more to

expose it or to develop it for the purposes of the

special leave application.

The other point upon which there was

disagreement in the Court of Appeal was on the question of interest. We rely on the approach taken by Mr Justice Mahoney in his dissenting

judgment in the Court of Appeal. I do not know

whether, after the very busy week Your Honours have
had, Your Honours have had time to look at the

judgments.

BRENNAN J: Yes, we have read the judgments. And

Mr Justice Mahoney, in fact, seemed to fall into an

error, did he not, in thinking that the interest

was to be calculated from the date of injury?

MR HUGHES:	That is a view that has been generally adopted. There was a difficulty in this case, Your Honour,
because the injury was a deemed injury because of
the nature of the afflication from which the worker
suffered.  The date which was conventionally
accepted apparently by the parties in both courts
below was 17 August 1989, which was the date of - I think it was on a medical certificate, which was
taken - - -

Alvorac 6 17/9/93

BRENNAN J: But the interest was, in fact, awarded on the

sum assessed, namely $30,000, from the date of

judgment to the date of payment, was it not?

MR HUGHES:  No, Your Honour, with respect, from the date of

deemed injury through to the date of payment.	Now
there was perhaps an error there because the

Compensation Court Act, section 19, provides two

different regimes with respect to interest up to

judgment or award, and interest thereafter. But

that is not a point with which I would for one

moment trouble this Court.

DAWSON J: But the fact remains it is an artificial sum, is

it not, because of the ceiling and you cannot say,

as you would say in, say, Gogic that after all,

when the damages are assessed they are assessed at

present day values, so that they have inbuilt an

inflation factor. You cannot say it, and the

majority are right on that point, are they not?

MR HUGHES:  We would say that, with respect to

Mr Justice Mahoney, he advances an arguable

alternative approach which is based upon the fact

that the legislature, for some reason best known to

itself, fixed the award as one that was to be made

in what was described as time of injury money, and

that, therefore, to disturb that balance by adding

interest at a commercial rate for pain and

suffering was really subverting the legislative

intent.

Now, Your Honours, the point is a short one

but it is an important one and if Your Honours

think, as I suggest Your Honours may, and I ask

Your Honours to form this conclusion, that there is an arguable point emerging from

Mr Justice Mahoney's reasons, and a point that is

of importance in the administration of the Workers

Compensation Act and the Compensation Court Act.

Those are the two points that I have endeavoured to

expose and we say that if the Court is of a mind

that these are not of general importance - I

suggest they are - at least they are important in

the administration of justice in this particular

very busy jurisdiction. If the Court pleases.

BRENNAN J:  Thank you, Mr Hughes. We need not trouble you,

Mr Joseph.

The Court is of the opinion that there is no

question of sufficient general public importance in

this case to justify the grant of special leave.

Accordingly, special leave will be refused.

MR JOSEPH:  I ask for costs, Your Honour.

Alvorac 7 17/9/93

MR HUGHES:  I cannot say anything.

BRENNAN J: It will be refused with costs.

AT 10.34 AM THE MATTER WAS ADJOURNED SINE DIE

"

Alvorac 17/9/93