Haines v Bendall

[1991] HCATrans 32

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S93 of 1990

B e t w e e n -

TREVOR WILLIAM HAINES

Appellant

and

DENNIS BENDALL

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

Haines(2) 7/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 FEBRUARY 1991, AT 10.03 AM

(Continued from 6/2/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Allsop.

MR ALLSOP:  Thank you, Your Honour. To answer or deal with

the matter raised by Justice Brennan late yesterday afternoon, the application of Redding v Lee to this

legislation is in part satisfied, at least as to

principle, the principal moneys of compensation, by

the clear intention of the Act that those moneys

payable as compensation under the Workers

Compensation Act do not in any way reduce the

amount of common law damages. That much is clear

because they have to be repaid and His Honour the

former Chief Justice Gibbs in Redding v Lee at

page 125, 151 CLR, after referring to

Espagne's case, says at page 125:

The test suggested is a general one, and it

requires the court to consider the nature of the benefit which the defendant seeks to set

off against the damages, and to inquire

whether the person or body supplying the

benefit intended that the plaintiff should

enjoy it in addition to whatever damage he

might recover from the defendant. In the case

of a benefit provided under statutory
authority, the intention of the legislature,

in providing the benefit, must be gleaned from

the statute itself as a matter of

interpretation. If the statute expressly

provides (as some statutes relating to

workers' compensation have done) that a

plaintiff who has recovered damages shall

repay the amount of the benefit it will be

clear that the receipt of the benefit must be

disregarded in the assessment.

Now, as to principle, if I can use that expression,

of the compensation, so much is clear. If one can

take from section 64 something further that the

payment of compensation is to be entirely

disregarded in the question of assessment of

damages, then that leads to the necessary

conclusion that Batchelor v Burke was wrongly decided, because it did not pay regard to the intention of a Parliament if the intention goes so

far as to utterly and totally disregard the payment

of compensation in assessment of damages which
involves, of course, the calculation of interest

thereon.

So, Your Honour, if that is the full intent

and complete intent within section 64 and the

necessity to repay that it is totally disregarded,

then it leads to the necessary conclusion that Batchelor v Burke is actually wrongly decided.

Haines(2) 44 7/2/91

If it is not wrongly decided, Your Honour, and

in my respectful submission, all the provisions

such as section 64 and section 63 do, in relation

to adjusting the relationship between the common

law compensation and the workers' compensation

compensation, is say that the principal sum has to

be repaid, one then is left with the necessity to

answer the question of the injured party when he

says, or makes his demand, "I want my general

damages and I have been held out of them, and

therefore I am entitled to interest.", he is

entitled to his interest if he in truth has been

held out of that money. That means that if he has
received another sum, one must look at the

character of that sum to see whether in truth and

in practical substance he has received the money he

is asking for and says he has been held out of.

The mere fact of having to repay it, the

section 16 award, from any general damages amount

does not really assist in that characterization for

two reasons. Firstly, there is no appropriation,

if I can use that expression, between economic and

non-economic loss in the provision requiring

repayment.

I think I said yesterday if Mr Bendall had

been even more unlucky and made insensible and thus

not entitled to very great general damages at all

because he was unconscious and made a quadriplegic,

he would receive an even more significant sum under

section 16 because of the loss of use of function

of limbs. He would receive virtually no general

damages, but he would still have to repay them all.

DEANE J: Except, Mr Allsop, you are treating section 63 and

section 64 as if they were the same and they are

not.

MR ALLSOP:	No, they are not.
DEANE J: There is an appropriation in section 63.
MR ALLSOP: Yes, Your Honour.	I am sorry, Your Honour,

Your Honour is quite right.

DEANE J: Are there any cases that suggest the two sections

should be treated as the same?

MR ALLSOP:	No, Your Honour, and perhaps it was a loose expression on my part.	We are really looking at
section 64 as - - -

DEANE J:  You see, if you look at 63(5) where it is the

employer who has been sued, that subsection can

readily be treated as an appropriation against

damages generally which means that, as one would

Haines(2) 45 7/2/91

expect when the employer is being sued, you have a

statutory provision that says he will get the

benefit.

MR ALLSOP:  Yes, Your Honour. I should direct our Honour's

attention in that regard, if I can interrupt

Your Honour, to section 64(l)(c).

DEANE J:  Do not apologize for interrupting me. Every time

I look at this Act I find something that I did not

know was there.	You are going to show me something
else?

MR ALLSOP:  Yes, Your Honour. In the circumstances which is

not the circumstances of this case and so, in my

submission, it does not apply but if the workers' compensation payer, whether it be the employer or

the insurer in the name of the employer, pays

compensation under the Act and before the worker

successfully recovers in the common law courts,

sues the third party stranger, the tortfeasor, that

paragraph provides that if the payment having been

made to the employer:

shall, to the extent of its amount be a

defence to the proceedings -

so, in that sense, the same form of general

appropriation or, or general characterization of

all moneys as compensation, arises in section 64 as

well, Your Honour. But, in my submission, one

cannot draw from that provision something which
deals with a situation that is quite distinct and

that is where the employer has not sought and

recovered from the tortfeasor and the question that

needs to be answered is - - -

DEANE J: But if you look at 64(l)(b), in that case the

employer would presumably be entitled to the

damages if the wrongdoer failed to honour the

statutory indemnity, all of which leads, does it

not, to the view that if the legislature had

addressed this question it would have made

provision, not that Mr Jackson's client could get the benefit in relation to interest, but that the employer could get from your client the benefit of

the interest.

MR ALLSOP:  Yes, Your Honour. With respect, Your Honour,

that may well be right, but it is not provided for.

DEANE J: Well, it obviously is not.

MR ALLSOP:	And, Your Honour, none of the paragraphs in section 64, either expressly or impliedly, answer
the question, "Has the worker been held out of his general damages by receipt of a sum under

Haines(2) 46 7/2/91

section 16?". That, in my respectful submission,

is the central question and it needs the sort of

characterization process that was undertaken in

Batchelor v Burke unless the necessity to repay

and, therefore, not take it into account in

assessing damages is of even wider import, that

passage in Justice Gibbs' judgment in Redding v

Lee, which would invalidate the underlying

reasoning in Batchelor v Burke.

DEANE J: My last interruption. Are you going to make any

reference to the situation which would exist if the

employer and a third party were jointly liable in

negligence?

MR ALLSOP:  The working out of that relationship is dealt

with in section 64A, although it is a provision

that obtains in respect of injuries that occurred

after the date of this injury. There, there is an

attempt by the legislature to adjust section 64

into the position of joint tortfeasors. I was not going to otherwise make any specific submission in

relation to it, Your Honour.

DEANE J:  Am I right that the effect of the Act is, in a

case where the action is against joint tortfeasors, the non-employer cannot obtain any benefit from the payment by the employer and the effect of

section 63 would be that the employer obtained the

interest advantage?

MR ALLSOP: Prior to the introduction of section 64A I think

that is right, Your Honour, and there is an attempt
to work out a more equitable relationship under

section 64A.

McHUGH J:  I am not sure that that is right. Even before

64A was added in 1980 the Workers Compensation

Commission had worked out a doctrine where two

employers were liable for compensation. It was

just held on general principles of indemnity - just

general principle, I suppose, that one could

recover contributions from the other and that was

upheld by the Privy Council in Morris v George.

MR ALLSOP:  In answer to Your Honour's question yesterday,

my reading of the Act overnight and consultation

with those at the bar table, our understanding is

that in practice - and I am not aware of anything

in the Act contrary to it - that if there is

contributory negligence it is irrelevant in

relation to the repayment and the full amount has

to be repaid.

McHUGH J:  The full amount is to be repaid?

Haines(2)	47	7/2/91
MR ALLSOP:	Yes, out of the award, as long as the award is sufficient in amount.	Your Honours, I would like

now to turn briefly to an elaboration in what

appears in paragraph 2 of the outline and first of

all simply give Your Honours a reference to

Morrow's case, (1986) 5 NSWLR, in the Court of
Appeal - I will not take Your Honours to it - where

Your Honour Justice McHugh looked at the history of section 16 briefly and recognized the relationship

it had with economic detriment and compensation

over the years.

Your Honours, going to the decision in Powder

River Pastoral Company, that provision dealt with

section 16(1B) and before going to the decision

itself I would like briefly to take Your Honours to

some aspects of section 16 on pages 75 to 77 of the

legislation. The structure of section 16 is that,

as Your Honours saw yesterday, tabled losses of

flesh or losses of function of flesh leading to a

statutory tariff under subsection (1). Within the

body of section 16 there are a number of aspects of

compensation that are dealt with in a discretionary

way and they are subsection (lB)(a) on page 75

which deals with severe facial disfigurement and

that subsection says that there shall be

compensation:

not exceeding $7900, as may be agreed upon, or
in default of agreement as may be assessed as

appropriate by a medical board in accordance

with the provisions of this subsection.

Then later in the subsection the medical board is

referred to and where possible a plastic surgeon

shall be .....

The other aspects are in subsection (lB)(al), also on page 75, where smell and taste and dealt

with and they likewise have a limit and, in default

of agreement, assessed as appropriate.

Similarly in subsection (1B)(a2) on page 76

which was the subject provision of Powder River, in

injury resulting in partial or total loss of sexual organs, there is a limit, and in default, an amount

appropriate, all identical in structure at the

moment.

Subparagraph (lB)(d) starting on page 76 and

going over to page 77 refers back to those matters

being smell, taste and sexual organs says the

commission or registrar shall for a fee go to a

medical board, and it calculates -

Haines(2) 48 7/2/91

as the case may require, whether any loss

referred in paragraph (a2) exists and, if so,

the nature and extent of the loss.

Then, Your Honours, there is the loss of an eye.

In subsection (lBA) the difference with this

provision is that that injury is also a table

injury. Loss of sight of an eye is set out in the

table, but there is some additional compensation,

additional to the table and additional to weekly

compensation under subparagraph (b) and provides

$6900 when the eye was sighted and something less

when the eye was not sighted dependent upon the

possibility of regaining of sight. But

importantly, that discretion is in a slightly

different wording. That discretion is -

as the Commission considers appropriate having

regard to the possibility that sight of the

eye would, but for the injury, have been, in

whole or in part, gained or regained, and to

such other matters as the Commission may take

into account.

There appears to be an even wider discretion than

that appearing in relation to taste, smell,

disfigurement and sexual organs.

TOOHEY J:	The provisions for loss of sense of smell, sense of taste or loss of sexual organs are curious in a way, Mr Allsop, because the maximum figure is
prescribed for total or partial loss. In other
words, it is not like the ordinary way in which the
table functions with a figure fixed for total loss,
and then I suppose a scaling down for proportionate
loss.

MR ALLSOP: That may be a factor against me in what I am

about to put in relation to the nature of the

discretion.

TOOHEY J: It seems to suggest that if you have total loss

you may not necessarily get the maximum amount

prescribed.

MR ALLSOP:  And even if one has partial loss, one may

get - - -

TOOHEY J: Conversely, you may get the full a.mount.

MR ALLSOP:  That may be a powerful argument why one of the

submissions in the alternative I will put about

Powder Works could be seen to be wrong. That

submission was going to be that the matters that

were appropriate to take into account in the sexual
organ provision were the objective state of the

injury rather than any personal subjective matters

Haines(2) 7/2/91

of pain and suffering. I do not have to put that

submission and I will come to it in a moment.

What Your Honour has put in relation to that

subsection could be seen as some reason why that

could not be the case because you might get less
than full compensation for total loss of sexual
organs, and if that is the case it must be

something other than the objective state of the

injury, and it must be something to do with the

personal effect subjectively on the injured person.

TOOHEY J:  Do you know why the Act fastened on to those

particular losses and treated them in that way?

MR ALLSOP: Well, Your Honour, in my submission, the

construction and the reason for it is plain, in

this regard, that they are clearly matters not

amenable to easy percentage calculations of loss.

They are matters peculiarly personal in one sense, smell, taste, disfigurement as being a subjective analysis of beauty in one sense and they are not matters easily characterized and reduced to

percentages for a table. To that extent it is

clear why they were given. There was a discretion

involved in the assessment of the amount.

Your Honours, as to Powder River, the first

submission I have put is this that the compensation

under 16(1) is clearly distinguished from those

subsections I have just referred to for the very

reason I have just enunciated and it is

impermissible and wrong, in my respectful

submission, to draw from whatever may underlie the

discretion in those matters into section 16(1), and

to the extent that the learned president did so,

and he being the only person who really did so in

the court, that is wrong.

The second submission I have referred to a

moment ago which I make, that to the extent that

even with the subsection dealing with sexual organs

the court took into account pain and suffering,
that was wrong.	It should be limited to objective
facts.	But I do not need that submission by reason

of the fact that it is clear that there is a

dichotomy between section 16(1) table and these

discretions and if pain and suffering is relevant to section 16(1B) inquiry then, with respect, the

judgment of His Honour Mr Justice Mahoney is the

correct way to approach it. That there is a

general wide ranging discretion that may take into

account pain and suffering, but that is something

that may, not necessarily must, be taken into

account and it does not follow from that at all

that under section 16(1), one of the matters that

Haines(2) 50 7/2/91

was a relevant consideration under 16(1B) must

necessarily be within section 16(1).

Your Honours, as to paragraph 3 of the

submissions, if I can briefly give Your Honours a

reference to Thatcher v Charles, without taking

Your Honours to it, Thatcher v Charles 104 CLR 57

at page 71 in the judgment of Mr Justice Windeyer,

distinguishing between fact of injury and what

flows there from and the same matter is referred to

in Teubner v Humble at page 505 point 8.

Your Honour, I do not want to unnecessarily

take Your Honours to the English decisions, which
are not the law in this country, that I referred to
yesterday, however if I can give Your Honours some
references to the main passages in them, they
perhaps more starkly than a reading of
Skelton v Collins and Sharman v Evans, throw up the

real distinction between the objective tariff, as

it were, and subjective loss for compensation for

solace, and Your Honours, in Wise v Kaye, (1962)

!QB 638, Your Honours have a photocopy, but if I

can just refer Your Honours to pages 649 to 654 in

the reasons of Lord Justice Sellers and pages 656

to 662 in the reasons of Lord Justice Upjohn.

Perhaps if I could just take Your Honours to

one passage in Lord Justice Upjohn's judgment at

page 662, and Lord Justice Upjohn was in the

majority, a majority approved in the House of Lords

in Western Shepherd and later approved in 1980 in

Lim Poh, after discussing the competing views as to

the basis for loss of amenities damages,

His Lordship says at point 8, concerning the figure

of 15,000 pounds for the insensible victim:

I do not think this assessment was erroneous.

It is a large figure, but the loss of amenity is very nearly 100 per cent -

the loss of amenity being the injury and that is

what section 16 deals with.

That was the central element of the majority

judgment in Wise v Kaye and in the House of Lords

which has been decisively rejected by the High

Court in this Court in Skelton v Collins. If I

just simply refer Your Honours to pages 664 to 669,

and especially at page 669 of

Lord Justice Diplock's judgment, he being in

dissent, and his views, together with the views of

Lords Reid and Devlin in West v Shephard being those Mr Justice Taylor in this Court found so

persuasive in Skelton v Collins.

Haines(2) 51 7/2/91

My learned friend took Your Honours to

passages of both Mr Justice Windeyer and

Mr Justice Taylor in Skelton v Collins. The

difference between the submissions put on behalf of

the appellant and the submissions I put to you is

perhaps a matter of emphasis but, in my submission,

when one reads Skelton v Collins, together with the

rejection of the House of Lords and the Court of

Appeal in Wise v Kaye and West v Shephard and, with

respect, the great force in the judgment of

His Honour Mr Justice Windeyer, who was very

doubtful whether any sum should be given for the

objective element if the person was insensible, one

comes to the conclusion that the substance of any

award for general damages, when the victim is not

unconscious is and must be the subjective element.

In my respectful submission, if Batchelor v

Burke applies this case simply does not fall within

its confines because when one characterizes, as I

have, section 16(1) it is not solatium for our

personal pain and suffering.

I think the submissions in relation to 5 and 6 I have dealt with earlier, Your Honours. As to

paragraph 7 of the written submissions, if my

learned friend be right in looking at the award of

general damages when he says, "Look, there is an

element of objective entitlement there and you can

test that by the paradigm situation of the

insensible unconscious quadriplegic.", he gets

something. Therefore, if you are not insensible or

unconscious there must be an element of objective

loss of faculty. That does not follow, in my

respectful submission.

His Honour Mr Justice Windeyer, in Teubner v

Humble, at 505 point 5 and 508 point 2, made his

view plain that it was artificial to look at

general damages other than as one sum. It had

strains within it and reasons and underlying

rationale but it was not a categorization strictly

of objective and subjective and, in my submission,	if the plaintiff is conscious and, as revealed at
pages 184 to 185 of the appeal book, the
substantial reasons for giving him general damages are his personal suffering, both pain and
realization of loss, notwithstanding that if he
were unconscious he might have got some modest
small sum, the true characterization of his general
damages is as subjective consolation.

BRENNAN J:  Mr Allsop, if one attributes to table of

injuries payments some characteristic as being a

payment for something, whatever it might be, is

that something ever to be neglected in the

assessment of general damages?

Haines(2) 52 7/2/91

MR ALLSOP:	Yes, it is, Your Honour.
BRENNAN J:	What is to be omitted?
MR ALLSOP:	I am sorry, Your Honour, it is all to be omitted for the first reason that it goes back out of the
award -
BRENNAN J:	I am sorry, I am not talking about the quantity,

I am talking about the considerations which move

the payment. However one might categorize this

section 16 payment, whether it is for the injury

itself or however you wish to put it, in the

assessment of general damages are the factors which
move the section 16 payment ever to be left out of

consideration?

MR ALLSOP:	In part it depends what they are, Your Honour.
BRENNAN J:	What factors which move the section 16 payment

are ever to be left out of consideration in the

assessment of general damages?

MR ALLSOP:	The mere fact of injury.
BRENNAN J:	The mere fact of - - -?
MR ALLSOP:	The mere fact of injury.  It is not an element,

in my respectful submission, of general damages and
that is why, in my submission, I have put the

submission that one must divide the fact from the

consequences. Where does one find - it is not a

matter of leaving it out, with respect,

Your Honour, it is a matter of finding the legal

principle under which one would bring it in and

where does one find in general damages the

compensation for the loss of flesh.

BRENNAN J: It appears to me to be almost impossible to

contemplate a case in which there was any of the

table 16 - table of injuries inflicted on a person

where, whatever the circumstances may be, he could

not recover some damages from a wrongdoer for

inflicting that injury.

MR ALLSOP:  Your Honour, if he is a worker, that hypothesis

means that he was receiving wages, one assumes.	To
that extent that it must be the case that he has

had some economic loss, one assumes, but it is not

difficult to see a situation where substantial

section 16 moneys could be paid to a worker and

virtually no general damages be recoverable,

non-pecuniary general damages, and I gave the

example earlier, Your Honour, of a Mr Bendell

having been made in a insensible quadriplegic.	The
better view may be, and Your Honours may have to

decide - it is not necessary for my argument, but

Haines(2) 53 7/2/91

the better view may be, out of Skelton v Collins,

that Mr Justice Windeyer's views unpersuaded and

uninfluenced by the views of the others on the

Court would be that, in those circumstances, there was simply no non-pecuniary general damages because

of the total lack of subjective realization of

loss.

BRENNAN J:	And so the plaintiff would fail?
MR ALLSOP:	So, Your Honour, the plaintiff might get

economic loss but he might fail to obtain any

damages for non-pecuniary general damage.

BRENNAN J: In a case where there was no economic loss the

plaintiff would fail.

MR ALLSOP:  And you would not have to pay back any of the

section 16.

DAWSON J:  How were the amounts tabled in section 16 arrived

at, by what is principle?

MR ALLSOP:  They have just amended over the years,

Your Honour. I am not aware of any parliamentary

committee report or anything like that identifying

why but they are simply the statutory tariffs that

have been amended over the years.

DAWSON J: What I have in mind: you could not arrive at any

sensible figure for the loss of a piece of flesh

without having regard to the results in relation to

a person, that is, the personal result. It

is ..... , loss of flesh.

MR ALLSOP: Yes, Your Honour, and that may have motivated

those persons who were working out how much to put

in the column, as it were. But, when one looks at

the legislation, it is clearly something that says

"so much flesh, so much money", and within the

intention of the section that sets that out, there

that that is for pain and suffering because it is	is nothing, in my respectful submission, that says
arbitrary and, as His Honour Justice McHugh said
yesterday, it is the same for someone 65 or 16, someone who suffers great pain in the loss of a leg
and someone who comes off with a blink of an eye
without any pain. There just is not any basis, in
my respectful submission, for the proposition that
artificial tariff has an element of pain and
suffering or subjective loss in it although we all
know that the sorts of injuries - - -

DAWSON J: Well, the fact that it is arbitrary does not mean

that it does not. It just means that it is

arbitrary.

Haines(2) 54 7/2/91

MR ALLSOP:  But it assists in looking at - if one goes back

to the background in which one things of these -

and that is why, with respect, Your Honour, the

debate in the Court of Appeal and the House of

Lords is illuminating as a matter of intellectual

conceptual structure of thinking about section 16

because the debate there is really between - if I
can put section 16 into it, as it were -

compensation as simply something a tariff for

losing the part of the body. You have lost the

amenity, you get some money and the State says, "An

arbitrary decision, how much?", and the minorities

in those cases have said, "That's not what the
common law's about. It's about real loss and the
loss is not so much the loss of the limb but what

flows from it. The loss of happiness or the pain

and suffering or the anguish" and you get money

for - - -

DAWSON J: Well that is just a contrast between an

individual assessment and an arbitrary assessment.

MR ALLSOP:  No, Your Honour, they have different

underlying -

DAWSON J:  You do not know because you do not know what went

into the arbitration.

MR ALLSOP:  You do not know what went into the mind of the

person writing - - -

DAWSON J:	..... , there is no need to pursue it.
MR ALLSOP:	Yes, Your Honour.  Your Honour, finally, two

matters. Paragraph 8 deals with the matters, if I

lose, as it were, on the characterization in whole or in part. There are two other matters I wish to

raise that flow from that.

Firstly, that even if it be the case that

there is some commonality or a substantial

commonality of elements in section 16, the fact

that section 16 in one sense, and loosely goes for

life, or may relate to whatever period one would

seek to relate it to means that, in my respectful

submission, that it, in fact, falls as part of a

discretion in section 94 and that even if

His Honour and the Court of Appeal were wrong that

as a matter of law it cannot be taken into account

in analysing the interest, it does not necessarily

follow that it must. It may well be that it is an

element - the commonality between section 16 and

general damages in an element that should be taken

into account in exercising the discretion under

section 94 and I may not go any further than that.

Haines(2) 55 7/2/91

The conceptual difficulties as to how one

spreads it over the years make it impossible, in my

respectful submission, to really logically do it

otherwise than pursuant to a discretion. If that

be wrong, then the appropriate way to do it, in my

respectful submission, is in a linear annual basis

and one takes the number of years from payment to

the date of judgment compared to the likely date of
death or ceasing to work and take a proportion.

One final matter, Your Honours: it is not in the written submissions and it perhaps takes up

something Justice Deane referred to yesterday.	A
difficult question of restitution and what
section 94 does would arise if Mr Jackson is

correct entirely in the totality of his submissions

and they are all accepted. Only then would one have a position where one is driven back to the

question of restitution because you would be at the
position that yes, you have received part of your

general damages prior to trial. If compensation,

being held out of your money, is the only relevant

factor, and according to Faraonio and the cases my

learned friend cited, that is the case, then
Batchelor v Burke would mean that Mr Bendall does

not get interest.

There may now, given the developments in this

Court in relation to restitution, need to have a

gloss placed upon the discretion in section 94, and

it may only mean that Mr Bendall may have to pay it

back to someone else in another action. But at

that point, having decided the complete

coextensiveness, or the substantial coextensiveness
of section 16 in general damages, for practical

purposes say he has been paid part of his general

damages, in my respectful submission one might be

able to put a gloss on section 94. I do not have

any cases that I can take Your Honours to.

DEANE J:  I have not followed the reference of the

discretion in section 94, Mr Allsop.

MR ALLSOP:  I am sorry, Your Honour. In section 94, the

second last page:

the Court may order that there shall be
included, in the sum for which judgment is

given, interest at such rate as it thinks fit

on the whole or any part of the money for the

whole or any part of the period - - -

DEANE J:  Thank you.

MR ALLSOP:  Your Honour, I do not have any cases I can take the Court to. It would need a gloss on the Privy

Council and this Court in a number of cases.

Haines(2)	56	7/2/91
DEANE J:	What is the situation if you happen to lose?	Was

there any condition as to costs put on the leave to

appeal?

MR ALLSOP: There was none asked for and given, Your Honour,

but the parties have come to - - -

DEANE J:  So we need not worry about that except we should

not make no order as to costs?

MR ALLSOP:  That is right, Your Honour, yes. They are my

submissions, Your Honours.

MASON CJ:  Thank you, Mr Allsop, the Court is indebted to

you for the assistance you have given us.	Yes,
Mr Jackson.

MR JACKSON: 

As I understand the position, what has been

agreed is that there should not, in the event of
our being successful, be any order for costs

against the respondent.

DEANE J: 

Does that cover it, because I would have thought

you should have paid the costs in any event, that

being the condition imposed, for example, in

Batchelor v Burke.

MR JACKSON:  Yes, Your Honour, and I have to say I was

little surprised to see that such a condition was

not imposed. Your Honour, may I take that up in

just a moment, but I understand the agreement to

which I referred is the one that has been arrived

at.

Your Honours, by way of reply may I say first

just this: our learned friend's argument in

relation to section 16 involves the assumption, in

our submission, that the compensation contemplated

by section 16(1) is compensation which is purely

for the loss of function, in the most limited sense

of the term, of the particular part of the body

which is affected.	We would submit that that
submission and the underlying concept in it suffers
from two defects.	The first is that the assumption

that a loss of a part of the body, or loss of use

of part of the body, is a pure physical disability

unattended by any other consequences is incorrect,

in our submission.

Your Honours, if I could seek to illustrate

what we would say in that regard. If one takes the

simplest case, perhaps, that is an injury which

results in instant amputation of a limb, then the

injury is, of course, loss of the limb but the
injury includes such things as the pain and

suffering attendant upon the amputation and perhaps

thereafter. It would include, one would think, the

Haines(2) 57 7/2/91

pain and suffering occasioned by such operation as

might be necessary to dress up the limb from its

amputated state. It might include the pain of the

steps necessary to fit an artificial arm or hand

and also such things as phantom pains occasioned by

the amputation in the first place.

Now, Your Honours, in relation to that, if one

is saying that section 16(1) provides for

compensation for that injury one looks to the table

to see what is that injury, that injury is loss of

the hand but it is the narrowest view of that

concept to say that it includes only the fact that

the person who has suffered that injury will

thereafter not be able to make the actual physical

use of the hand which has been amputated.

The second thing we would say is this,

Your Honours, and it is illustrated by what was

said by the Court of Appeal per Your Honour

Justice McHugh in Department of Public Works v

Morrow, and I will give the reference in just a

moment, that it may well be that the cause of the

loss of use is, itself, pain in that part of the

body or in some other part of the body and,

Your Honours, it could well be that, for example,

back pain has the result that there is a loss of
function of a leg or an arm. It may be that there
is some condition of pain in the limb itself which
gives rise to the loss of function.

Could I, in that regard, take Your Honours to that case, Department of Public Works v Morrow,

(1986) 5 NSWLR 166, and in particular, Your Honours

- the headnote in effect summarizes the case and

that is that a reduced use of a limb directly

caused by pain in another part of the body

constitutes a loss of the efficient use of the limb

within the meaning of section 16(5) and may I take

Your Honours particularly to page 169, at the

bottom of the page going over to the whole of the

next page and, Your Honours, in summary in the

second new paragraph on page 170, Your Honour said:

In the present case the evidence was that

the use of the worker's arms and limbs caused

pain to his back. Inevitably he refrained

from making use of his limbs because it would

cause pain. I think that this constitutes the

loss of the efficient use of his arms and

limbs. A person who cannot bend his leg

because it causes pain in his back loses the
efficient use of it as surely as the person

who cannot bend his leg because it causes pain

in the knee.

Haines(2) 58 7/2/91

Your Honours, what that case demonstrates is

that the notion that when section 16(1) speaks of

compensation for that injury, which requires one to go to the table and one sees the injury identified,

the notion that that means that all that is

contemplated by it is the loss of the actual

physical use of the limb or other part of the body

is one which is too fine a concept, in our

submission. It expresses a concept too neatly and,

we would submit, inaccurately.

Your Honours, if I could simply say this,

finally, on that point, that, in the end, what is

contemplated by section 16(1) is compensation for

that injury and the injury is the injury which is a

rather larger concept than purely the functional

thing.

Your Honours, the second area I wish to deal

with in our submission in reply is this: the

reliance by our learned friends on the subjective

element involved in Australia in awards for pain,

suffering and loss of amenities does, in a sense,

use the tail to wag the dog. The typical case is a

case such as the present where one sees that the

plaintiff does have insight into injuries and

appreciates, sometimes with great fortitude, the

disabilities and other disadvantages which are in

consequence of it.

The difference between Australia and England,

fundamentally, in that regard, is that in Australia
if the plaintiff does not have insight or full
insight then the damages will be reduced because of
that fact. But, Your Honours, even in cases where

a plaintiff does not have insight into the

plaintiff's injuries there will yet be or may well

yet be some substantial award by reason of pain,

suffering and loss - by reason of, at least, I

should say - loss of amenity.

If one takes the case where some disfigurement

has been caused by the injury, then it may well be

that although the plaintiff is not conscious of the

effects of the disfigurement the effects of the

disfigurement yet have the result that it is more

difficult for the plaintiff to obtain the

assistance of persons whose assistance is needed.

If I could give Your Honours an example of a

person who is a railway shunter, both of whose

hands were amputated when the rolling stock rolled

over him and perhaps lost half a foot or something
of that nature. Now, Your Honours, in a case like

that, it may be that he suffered also head injuries

which rendered him insensible, but the

disfigurement which may be occasioned by it and the

Haines(2) 59 7/2/91

actual physical disabilities of the person may

render his condition such that it is only the most

charitable of people who willingly assist. So

that, Your Honours, even in cases where there is no

insight, there may well yet be some substantial

award for loss of amenities. Your Honours, in the

ordinary case however, the plaintiff will be

sensible of the injury.

Your Honours, could I move then to a third

point and that concerns the relationship, as it

were, of the potential three parties to section 63

and 64, the injured person, the employer and the

tortfeasor. The first thing is, Your Honours, that

one should not forget, of course, that when one is

speaking of the employer, one really is speaking,

except in the, to use the expression again,

atypical case, one is speaking of the employer's

insurer, because by section 18(1) of the Act the

employer is required to insure against the

employer's liability in two ways: first in respect

of the liability to pay compensation; secondly, in

respect of the potential liability under the

general law, so that one is speaking then about, in
the ordinary case, an insurer. It is possible, of

course, for there to be self insurance if exemption

is obtained under section 18(1A). Now Your

Honours, where that leads me to is this, that if it

be that a third party - perhaps I can say one other

thing. If it be that the the employer is the

tortfeasor, then it is probably the same insurer in

both cases. Even if a third party is the

tortfeasor, it may well be that the insurer is the

same person as the insurer of the employer.

Now, Your Honours, if one is concerned with

looking to the justice of the situation, one then

obtains, in our submission, the justice of the

situation by looking at the relevant statutes.

Now, Your Honours, the statute, if one turns first

to the Workers Compensation Act, says that the

section 16(1) payment does go against damages in

case, or it has to be repaid in another. the sense that it either reduces damages, in one Your Honours, that approach is an approach

which was regarded as particularly material by the

Court and, indeed, by all members of the Court in

Batchelor v Burke. And, Your Honours, the other thing that is apparent from Batchelor v Burke is that the approach taken by the Court in that case

was not to accept the notion that the purpose of

compensation was to do other than to look to the

position of the plaintiff - I am sorry,

Your Honours, I have said the wrong thing. In

Batchelor v Burke, one thing that is clear from the judgment of the Court is that the Court took the

Haines(2) 60 7/2/91

view that the purpose of awarding interest was not

to look, really, to the position of any of the

potential parties to the relevant transactions

other than the plaintiff who had been potentially

kept out of money.

If one applies, in our submission, the

approach taken by the Court in Batchelor v Burke to

a case such as the present then the same

conclusion, we would submit, would follow. If one

is to adopt a different approach in a case such as

the present it does involve, we would submit, some

implied overruling of the approach taken in

Batchelor v Burke.

Your Honours, I do not want to go into detail

about that but may I just simply say this: the

Court's decision in Batchelor v Burke was one which

seemed to follow out, in the sense of applying and

adopting, statements by the Court as to the

principle underlying the circumstances in which

damages might be awarded.

Your Honours, there is really not, in our

submission, any reason for adopting a different

approach in the present case. No doubt the other

view might have been taken in that case but it is
not a case where there was a dissenting voice on

the Court and it is not a case where there is

really now any particularly strong call to overrule

the principle.

Your Honours, might I just say this, of

course: time has passed by since Batchelor v Burke

was decided - a period of about 10 years - and one
would have thought that the principle underlying it

is one which has been adopted for such things,

Your Honours, as calculating premiums in various

parts of Australia. One should not, we would

submit, adopt an approach which would render the

law, in that regard, uncertain.

Your Honours, we would submit that if one is

applying Batchelor v Burke to the present case,

then it would be consistent to decide the case our

way; inconsistent to decide it the other way.

Your Honours, I have nothing further.

MASON CJ: Thank you, Mr Jackson.

MR JACKSON:  I should have said one other thing.

Your Honour, could I just say this in relation to

costs. We have reached an agreement satisfactory

to the parties as to the costs of the present

proceedings and it would not be necessary - I am

sorry, perhaps I should just say that in that

regard.

Haines(2) 61 7/2/91

MASON CJ: So, no order as to costs need be made in either

event?

MR JACKSON:  Yes, Your Honour.

MASON CJ: Very well. Is it understood, Mr Jackson, that

even if you lose no order is to be made by this

Court? Do the arrangements cover that?

MR JACKSON:  Your Honour, that is what I understand to be

the position.	We have agreed to pay the costs in
that event.

MASON CJ:  Very well. The Court will consider its decision

in this matter.

AT 11.02 AM THE MATTER WAS ADJOURNED SINE DIE

Haines(2) 62 7/2/91