K.B. Hutcherson Pty Limited v Correia
[1995] HCATrans 8
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S72 of 1994
B e t w e e n -
K.B. HUTCHERSON PTY LIMITED
Appellant
and
JOSE CORREIA
Respondent
BRENNAN J
DEANE J
DAWSON
TOOHEY J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 14 FEBRUARY 1995, AT 11.57 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.W. DODD, for the appellant. (instructed by Hickson Lakeman & Holcombe)
MR T.E.F. HUGHES, QC: May it please the Court, I appear with my learned friend, MR J.W. CATSANOS, for the respondent. (instructed by Taylor & Scott)
MR JACKSON: Your Honours should have an outline of submissions, together with a bundle of statutes and so on, that may be material.
BRENNAN J: Yes, Mr Jackson.
MR JACKSON: Your Honours, the appeal turns on a question of construction of the Workers Compensation Act 1987 of New South Wales, and of the table to which section 66 of that Act refers, in cases where a worker suffered the loss of use of a leg above as well as below the knee. Your Honours, may I go immediately to the provisions to which I have referred. Your Honour should have a short version of the Workers Compensation Act in its 1987 form attached to the papers, which I gave your Honours, which sets out the relevant provisions.
In Part II of that Act, the Workers Compensation Act, it deals with the compensation payable for injury suffered by a work and Part III contains a number of divisions. the division relevant for present purposes, being Division 4, which commences with section 65. Your Honours will see that Division 4 commencing with section 65 is headed “Compensation for non-economic loss” and section 65(1) contained a definition of relevance for present purposes. Your Honours, section 65(1) makes it apparent that the term “loss”, when used in the succeeding provisions of the division, means:
the permanent loss of the use, or of the efficient use -
as well as loss by, to put is shortly, dismemberment.
The first operative provision of the division is section 66(1). May I take your Honours to that? It says that:
A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation.....the amount equal to the percentage of $80,000 -
that is a figure that is varied from time to time -
set out opposite to that loss in that Table.
Your Honours will see that the compensation for the loss will be, as section 66(1) says, a specified percentage of a fixed sum. I will take your Honours to the table in just a moment, but may I mention one other matter first: It is that it is possible, of course, for there to be a loss of efficient use, which is not total, but rather a partial loss of use. That is recognised by section 68(1) which then provides for, to put it shortly, proportionality.
The last provision to which I will refer before going to the table itself is section 66(2). It recognises that, as often unfortunately happens, people suffer multiple injuries, and what it does do is to provide a cap to the maximum that can be obtained. Your Honours will have seen under subsection (1) that there a worker is entitled to a proportion of a fixed sum; and then subsection(2) caps the maximum that can be obtained in any particular case.
If I could go then to the table, which appears after section 73. It is headed, “Compensation for Permanent Injuries”, and your Honours will see that it indicates the nature of the injury in the left column, and the appropriate percentage in the right column, the percentage being the percentage of the maximum amount payable. In some cases, as appears towards the end of the table, the percentage provided for is a range. For example, the last item in the case of, “Severe facial disfigurement”, the range is 0-26 per cent. In the cases where there is a range provided for in the table itself, the following note, note (a), applies.
Could I come then, your Honours, to the first page of the table under the heading “Arm injuries”. Your Honours will see reference to:
Loss of right arm at or above elbow ... 80
Loss of right arm below elbow ......... 75
Then the other arm is referred to. I should say, your Honours, one of the notes says that if you are left‑handed, you are treated as right‑handed in effect. Then below that under the heading “Hand injuries” the percentages, as one might expect, get lower going through to the loss of the first joint of the little or ring finger of either hand, 6 per cent.
So far as leg injuries are concerned ‑ and that is the provision directly material for present purposes ‑ your Honours will see that there are two headings which are material, “Leg injuries” and “Foot injuries”. Under the heading “Leg injuries” is:
Loss of either leg at or above the knee ... 75
Loss of either leg below the knee ......... 70
Under “Foot injuries”:
Loss of a foot ............................ 65
.....
Loss of any joint of any other toe ........ 2
Your Honours, if I could say for the moment with the two items under the heading “Leg injuries”. It is clear of course that where there has been dismemberment or amputation of the limb at or above the knee, the 75 per cent figure is applicable. Inevitably one would think in that class of case, the loss below the knee forming part of the loss occasioned by amputation at or above is subsumed in the loss at or above the knee. If I could pause to say also that if one goes to the notes to the table again, note (c) says that:
If a loss ‑
other than specified ones ‑
may be compensated by a combination of items in the Table or by a proportionate loss of a single item, the loss shall be compensated by a proportionate loss of a single item (eg loss of 2 or more fingers to be compensated as a proportionate loss of the use of the hand).
Your Honours, the view taken in the Court of Appeal was that whatever might be the position in the case of an amputation at or above the knee, an award in a loss of use case might be a proportion of each of the two percentages, 75 and 70 per cent, under the heading “Leg injuries”, even though one might get something more than the 75 per cent in toto, to put it shortly. In our submission, the correct view was that a percentage of the higher figure only should be awarded, taking into account the whole of the disability to the leg.
What we would submit, your Honours, is that, although perhaps the table might not be expressed with the most pristine clarity, the intention, we would submit, is apparent enough, that in cases of loss of use of the leg as well as in the case of loss of the limb itself, the leg is to be considered as a whole. If there has been loss of use of the whole of the leg, then the appropriate item in the table is “loss of either leg at or above the knee”, meaning loss of use of either leg at or above the knee and not both.
TOOHEY J: Where you are dealing with loss of use or loss of efficient use as opposed to amputation, is there any difficulty medically in distinguishing between loss at or above the knee and loss below the knee?
MR JACKSON: Well, I was going to come to that, your Honour, and, indeed, the particular case provides an indication because what happened was that the two doctors whose evidence was accepted in the court below, one of them - the respondent’s doctors - found himself unable to treat them as two parts. The other initially did so too and only gave the division that was accepted by the primary judge as a result of a specific request by the solicitors for the respondent to apportion in that way because the assumption was that was what the Act provided for.
Indeed, your Honour - I will come back to the facts in just a moment, but the case is one where what happened was because of a problem in the back there was a loss of use which in effect radiated down throughout the leg, there was a loss of use of the whole of the leg. Now, your Honours, if I could take your Honours to the decision of the Court of Appeal in this case immediately. The view taken by that court appears at page 43 in a passage commencing at line 5 and going through to line 44 on the same page and I shall not read out the passage, but your Honours will see it occupies the paragraph covering most of that page.
Could I say, your Honours, this, that your Honours will see that between lines 19 to 26 the Court of Appeal referred to the evidence that:
there had been a permanent loss of efficient use of a proportion of the leg below the knee and at or above the knee.
Now, we accept of course that there was such evidence, but it was based, in our submission, on a false premise, namely, that it was necessary to apportion the loss in such a way, that is, to a loss below and a loss at or above the knee. That evidence, your Honours, is referred to by Mr Justice Priestley one page earlier at page 42, at the bottom of the page, line 39, going to the top of page 43 about line 4. Your Honours, the nature of the evidence is not dealt with there, but may I just say in relation to it that the evidence is referred to by the primary judge at page 26 at about line 9 in a passage which goes through to line 41 on page 26 and your Honours will see there, and in particular between lines 35 and 41, that the primary judge accepted the assessment of Drs Wolfenden and Graham. He does not go into specifics there about which part of the legs were involved, but at page 28 between lines 21 and 34 your Honours will see the percentage assessments there referred to.
Now, your Honours, I want, if I may, to go to that evidence - and it is very short - for just a moment because what emerges is that the - as I was saying to your Honour Justice Toohey a moment ago - division of the disability into two parts was not the doctors’ natural way of dealing with the assessment but was requested in order to satisfy the supposed requirements of the table. Your Honours, the evidence of those doctors was contained in written reports and, in addition, Dr Wolfenden gave oral evidence. Your Honours, unfortunately the medical reports are not reproduced in the appeal record but I just need to go briefly to them to indicate the point, and your Honours will see them amongst the bundle of documents that was given; they were, of course, at the very back of the bundle, I think, your Honours.
Dr Wolfenden’s first report is dated 14 February 1991. Your Honours will see, on the second page of it, there is the statement “Opinion” and then the third paragraph of that is the relevant paragraph where he says:
no primary disability in the legs and the apparent difficulty in the legs is due entirely to compression of the nerve roots in the back which cause pain in the legs. The primary disability therefore relates to his lumbar spine -
et cetera, and he assesses:
the overall disability of the whole person -
Your Honours, if one goes then to his second report which is just over the next page, a report of 28 March 1991, your Honours will see that he commences by referring to a letter of 26 March and then sets out disabilities in terms of, at or above the knee, in respect of each leg. Your Honours, the letter to which he refers was a request to do so as appears from his oral evidence at page 9 of the record, lines 30 to 44. Your Honours, he had some intellectual difficulty in allocation of percentages. That appears in a passage at page 4 going down to - lines 1 to 15 on that page.
Your Honours, the last thing I wish to say in relation to the medical evidence is that your Honours will have seen that the primary judge said that Dr Wolfenden’s assessment was supported by that of Dr Graham. Dr Graham as I said, gave no oral evidence. The relevant report is the last document in the bundle of reports. At the bottom of the first page he refers in the last paragraph to their being a loss of 30 per cent use of the right leg and 15 per cent of the left leg; he takes the leg as a whole. Then at the top of the next page he said he was:
not really able to distinguish between the percentage loss of use of the right leg below the knee and above the knee.
DEANE J: This is the opinion of C. Edmund Graham Proprietary Limited?
MR JACKSON: Yes, your Honour, without getting into it, as distinct from G. Sian Graham, if that be the right pronunciation, C. Edmund Graham on behalf of that section 51(xx) corporation, appears to express the view in trade or commerce.
Your Honours, what emerges, in our submission, is the apportionment of disability to above or below the knee is something which is artificial. We would submit that it is plain enough, if one looks at the table, that it intends relevantly that if the leg is affected both above and below the knee - I should say more accurately both at or above the knee or below - that a proportion of the 75 per cent is to be arrived at, not a proportion of each of the two bits as it were, 75 per cent and 70 per cent.
TOOHEY J: Well, from your point of view, you do not necessarily even have to put it that way, do you? You just say, how far does the loss of efficient use or loss of use extend? If it is at or above the knee, then 75 is the relevant figure and that is it.
MR JACKSON: Yes, your Honour.
TOOHEY J: It may be right or it may be wrong, but it may be as simple as that.
MR JACKSON: Yes, and your Honour, really if one looks at, for example, just the two headings, “leg injuries” and foot injuries”, it is really pretty obvious that it is starting with the least serious loss of use and working up to the most serious, with the percentage getting higher on the way. Now, your Honour, no doubt there would be an element of debate whether loss of a foot was also loss of either leg below the knee, with a 5 per cent difference, but leaving aside questions of that kind, it is plain enough, in our submission, that it is a scale which in substance escalates, as in the case of the hands and arms.
Your Honours, the present case, however, is one of three cases in which the issue was dealt with by the Court of Appeal in 1993. The other two cases dealt with arms and that may explain why the reasons for judgment in the present case are quite short. The present case was the second of the three cases. Its reasons for judgment were given on 23 March 1993. A little over a week before, a slightly differently constituted Court of Appeal gave judgment in the first of the cases, J. Odlin Shopfitting International Pty Limited v Kaljanac (1993) 29 NSWLR 632.
If your Honours go to page 633E, what happened was that the medical panel at first assessed a loss of use of the whole arm ‑ did what, in our submission, was the right thing. Your Honours will see between letters E and F that the assessment did not differentiate between the two parts of the arm. But the case was sent back to the medical panel for further assessment above and below the elbow and an issue similar to that presently in question arose.
Your Honours will see the argument set out at page 637D in the President’s reasons going through to 638D. That argument was rejected by the court. The reasons for rejecting the argument are to be found in the President’s reasons commencing at page 638 under the heading “Giving the Table its literal construction”. Could I go to those reasons in effect in turn. The first is that numbered 1 on page 638 between letters E and F. I would invite your Honours to read that, but in essence it is some reliance upon what is said to be the course of the legislative history of the tables in the previous Act and in the 1987 Act. The history to which his Honour is referring had been earlier summarised by him at page 636 under the heading “The relevant legislative history”. Your Honours will see that at 636D through to the bottom of that page.
We would wish to say three things in relation to what his Honour has referred to as the relevant legislative history. The first concerns the change in wording of the table. That must be the essence of legislative history. The wording of the table before is set out by his Honour about letter E which said:
“... Loss of either arm, or of the greater part thereof
Loss of the lower part of either arm, either hand, or 5 fingers of either hand.”
There was an equivalent provision in relation to legs. Amongst the bundle of papers your Honours will have is the extract from the 1926 Act which sets out the provisions there referred to.
Your Honours, in our submission, the change in language from those provisions to the language of the present provision was to do no more than to avoid what one might regard in one sense as rather unseemly ‑ and I do not mean that in any social sense, but rather unnecessary ‑ disputes about what was the greater part of an arm or a leg. What was done was to select the knee or the elbow, but the change in wording was not to seek to alter the overall sense of the concepts involved.
The second thing we would seek to mention about his Honour’s reliance upon history is that it is difficult, with respect, to see what assistance is to be found from the decision of the New South Wales Full Court to which his Honour referred at page 636 in Bennett v General Motors Holdens Ltd (1940) 40 SR (NSW) 117.
In that case the worker had lost and had been compensated for a finger whilst employed by employer A. The worker was later injured in the wrist of the same hand while employed by employer B. The second injury to the wrist caused a loss of use of the hand, albeit the hand having lost one finger. The view taken by the Workers Compensation Commission appears at page 122, at about point 8 on the page. People complain about the world being tough sometimes but, if your Honours look at point 8, times have on one view been tougher because:
The Commission held that s 16 makes no provision for any payment for the loss of the lower part of an arm already deficient to the extent of a ring finger -
and that he should get nothing unless there was an award made by consent and the employer, no doubt well advised, did consent to an award which took off something because of the prior loss of the finger.
A less radical approach, a kind of proportionate approach, was taken on appeal, as your Honours will see at page 124, about point 2. In the paragraph commencing at about point 2 on the page, your Honours will see the view that was taken in that case going through, really, until the end of the reasons for judgment. I think I said “a kind of proportionate approach was taken”; I meant to say “a proportionate argument was advanced” which was rejected, as appears there.
TOOHEY J: Mr Jackson, I realise we are dealing with the New South Wales statute but this table, in one form or another in this type of provision, is pretty commonplace. Has there not been a decision of any other State’s Supreme Court that throws light on the matter?
MR JACKSON: No, your Honour. That is the short answer, your Honour, not in our submission. We have found nothing that really touches the particular point. Decisions of various courts in various jurisdictions on various provisions - what used to be called “tables of maims”. I do not know whether it was a popular expression or one that was used earlier, but the answer seems to be no, your Honour.
Your Honours, the decision in Bennett v General Motors Holden really does not seem to touch the particular case at all. All one can say, I suppose, is that if one goes to page 123, in the paragraph commencing about point 4, there is some discussion of the relevant section 16 but, in our submission, the approach taken by the Full Court in that case does not advance the present case at all.
The third thing, your Honours, we would seek to say in relation to what was said by the President in Odlin Shopfitting International Pty Ltd v Kaljanac, concerns his reference to the decision of this Court in King v Hayward (1943) 67 CLR 488. That is a case which is really similar to Bennett, but in relation to an I. Your Honours, the facts are adequately stated in the headnote, and the reasons are shortly stated in Chief Justice Latham at page 493 about point 6 or 7, the paragraph commencing, “In my opinion” and at page 494 at about half-way through that page:
I agree with what was said by Mr Justice Davidson ‑
et cetera. I should add, your Honours, that that case, Rodios v Trefle, is the other case referred to by Mr Justice Kirby at page 636.
Your Honours, the short fact is that those decisions do not seem to advance the resolution of the issue at all. Could I go back then to Mr Justice Kirby’s reasons in Kaljanac and, in particular, to the second of the reasons referred to by his Honour at the bottom of page 638. Now, your Honours, in relation to that reason No 2, undoubtedly multiple injuries may give rise to multiple claims. A worker may lose or lose the use of a finger from one hand and a foot as well, or the many other accommodations of circumstances. But section 66(2) is not in any way a charter setting out workers’ rights, in effect. What section 66(2) does, and does no more than, is to limit what the rights would otherwise be and, your Honours, if it were not for section 66(2), a worker suffering more than one injury would be entitled to add up all the assessments flowing from the table, without there being any limit, and it is section 66(2) which provides a cap. Your Honours, that is an issue that was dealt with by the Court of Appeal in a decision which is referred to on another point in the present case, namely Bresmac Pty Ltd v Starr. The case was not reported at the time of the decision in this case, but it is now: (1992) 29 NSWLR 318, and a copy of it should be amongst the bundle of papers I gave your Honours.
Your Honours will see in two places in that decision there is a reference to the function of section 66(2). At page 320F to G, in the second sentence of that paragraph:
The total of the separate amounts of compensation substantially exceeded the figures then to be treated as referred to in subs (1) and subs (2). The applicant would have been entitled by section 66(1) to each separate amount of compensation, had section 66(2) not been in the Act.
And more fully, your Honours, at page 323F, your Honours will see a heading:
Is section 66(2) an independent head of entitlement?
That goes through to 324C and Mr Justice Priestley, with whose reasons the other members of the court agreed, held that it was a cap, not a charter of entitlements, as it were.
Could I just mention in passing, your Honours, in relation to section 66(1) and section 66(2) just one feature? It is this, your Honours: at the time when the injury in question in this case was suffered, which was 23 November 1988, the money sums in section 66(1) and 66(2) were the same - 85,200. Amongst the documents that your Honours have been given is a document which sets out how the figures have changed with time and, in fact, there has been some divergence between the two figures. It does not matter very much, but it may be of assistance to your Honours.
TOOHEY J: Do they change by reason of legislative change or by reason of some inbuilt formula?
MR JACKSON: Your Honour, both. The reason for it is set out in the table. The next thing we would seek to ‑ ‑ ‑
BRENNAN J: What was the purpose of the citation from Bresmac, what was the point that you were making from it?
MR JACKSON: Your Honour, what I was seeking to say was this: if one looks at section 66(2), and your Honours will see that the President seems to place some reliance upon section 66(2) in paragraph 2 - the decision in Bresmac simply demonstrates that it is a decision of the Court of Appeal in which it has been held that the effect of section 66(2) is to limit the amount that might be obtained by adding together the various percentages that would be obtained in a case where there was no limit provided for. Section 66(2) does no more than that. For section 66(2) to be of any relevance to the present question, what one would have to first answer is the question whether, in terms of that provision, the worker had, in the present facts, suffered more than one of the losses sustained in the table. The point I am seeking to make in a somewhat round‑about way, I think, is this, that what section 66(2) does - its terms give no assistance in working out what is meant by the item in the table itself.
BRENNAN J: You are rejecting Bresmac?
MR JACKSON: No, I am sorry, your Honour, I am not.
BRENNAN J: I must be at a loss. Could I just take you to page 324 of Bresmac?
MR JACKSON: Yes, your Honour.
BRENNAN J: Between letters A and B on 324, Justice Priestley says:
If subs (2) were not present, subs (1) would entitle the worker to receive a separate amount of compensation for each injury.
MR JACKSON: I accept that.
BRENNAN J: You accept that?
MR JACKSON: Yes.
TOOHEY J: On the approach taken by the Court of Appeal, it would not be necessary to resort to subsection (2) except for the purpose of putting a brake on the amount which could otherwise be claimed.
MR JACKSON: Yes. What I am seeking to say about it is this: section 66(2) provides a cap where a person qualifies, if that be the right word - has a number of injuries falling within the table. It does not do any more than that. The question whether a particular injury falls within one or two parts of the table is to be resolved by looking at the table. Once one has done that, one then gets to 66(2). That is why, we would submit, the relevance of his Honour’s reference to section 66(2) is a little elusive to the particular case.
McHUGH J: Except he seems to be implying that any injustice to the respondents before the commission are overcome by section 66(2), that there is a cap on it.
MR JACKSON: Yes, your Honour, if that is what his Honour is saying. Perhaps that is what he is saying. What he has done, with respect, is to leave out of account the fact that there is the anterior question in the first place, what losses. Is it a case where more than one loss in terms of 66(2) has been suffered and, your Honours, in the particular case, in our submission, the worker suffered only one loss.
Could I come then to paragraph 3 of those reasons where your Honours will see a reference to note (c) to the table and if your Honours look at note (c) to the table one would think that, and particularly by reference to, for example, the words in parentheses at the end of note (c), it seems obviously enough intended to apply to the situation of arms and legs and looking to progressively greater loss or loss of use and the example, in our submission, makes that pretty clear.
Your Honours, paragraph 4 of his Honour’s reasons relates back, I think, to paragraph 2 and paragraph 5 relates back to what I was saying a moment ago about note (c). Your Honours, if I could go then to his Honour’s paragraph 6. What we would simply say about it is that the medical evidence did not readily accept the task of making an inherently artificial division. Your Honours, perhaps I should say one further thing about paragraph 5 of his Honour’s observations there. His Honour says that there should have been a note similar to note (c) but more explicit.
Your Honours, we would submit in response to that that Parliament might well have thought that note (c) would do the job if it was necessary to have any such note at all. Your Honours, the other decision of the Court of Appeal in relation to arms is an unreported decision in Rapford Pty Ltd v Williams, a decision on 25 June 1993. The principal judgment should be amongst your Honours’ papers. The principal judgment was that of Mr Justice Mahoney. As is apparent from the first paragraph of his Honour’s reasons, the worker’s left arm required amputation below the elbow, but it was a case where there was also severe pain above the elbow.
His Honour’s reasons deal with the claim at page 6 and following and you will see, commencing at about point 4 on the page, his Honour says “his Honour concluded” et cetera and your Honours will see, going through the remainder of that page, that there was an award in respect of each of loss of use above and loss of use below the elbow. His Honour says at the top of page 8 at about the fifth and sixth line that the primary judge:
was not in error in concluding that there was a loss of the efficient use of the whole arm.
And his Honour’s reasons in the next two paragraphs on page 7 prima facie would seem to support the submission that we are making and then I would refer particularly to what was said about point 5 on the page through to point 6, but as your Honours will see, the last paragraph on page 8 in the passage which goes through to page 10 about point 3, that in the end his Honour found no error in the award. Now, your Honours, that simply seems to be adopting the other view.
I should have mentioned when dealing with Kaljanac that if your Honours go to 29 NSWLR 639, at letter F, Mr Justice Kirby referred to the other cases. In the end, the question is one of construction and, in our submission, it is simply a case where if one looks at ‑ the first question is what does the table say? If one looks at the table and the parts that go to make it up, it is apparent, in our submission, that the concepts are intended to be getting greater as one goes, in effect, up the table of “feet and legs”.
As to the course which should be taken if the appeal were successful, this is a case where the evidence accepted by the judge did not really deal with the right question and the appropriate order, in our submission, is that to which we refer in our notice of appeal at page 52. Your Honours, those are our submissions.
BRENNAN J: Thank you, Mr Jackson. The Court will adjourn now until 2.15 this afternoon.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
BRENNAN J: Yes, Mr Hughes.
MR HUGHES: If your Honours please. May I first of all hand up six copies of the outline. Your Honours, first of all I should perhaps endeavour to deal with what I respectfully would describe as a forensic red herring drawn by my learned friend with his usual engaging style. That is the reference to the difficulty, or supposed difficulty, of assessing a loss of efficient use separately in relation to the upper leg and the lower leg.
It does not seem to have very much to do with this case, I suggest, because the evidence that was accepted by the primary judge and withstood challenge in the Court of Appeal was that it is possible to do so, albeit it may be difficult in individual cases. One can hardly, I suggest, allow some supposed difficulty in the application of the table to control its interpretation. It is a table that has grown with the passage of time in this sense, that whereas in the table to section 16 of the 1926 Workers Compensation Act there were I think 19 individual injuries set out in the table, there are now 48.
So it was, with respect to the President in the Court of Appeal, perfectly accurate to say that there has been a legislative tendency towards greater specificity or diversity of definition in the relevant injuries.
The first thing that one might say about the table, comparing it with the note - in particular note (c) - is that the section which prescribes the table refers to the loss of things, whereas when you go to note (c), the relevant noun is “item”; but it can hardly be supposed that “thing” and “item” are different.
We would submit that the relevance of the earlier cases to which my learned friend referred is simply this, that Bennett’s Case and the case that approved it in this Court, in 67 CLR, laid down as, really, a ground rule a rather literal interpretation of this table as it existed in its previous form, and we suggest that one does interpret it or one should interpret it literally, looking for precisely the thing or item that is designated rather than adopt some approach to construction that proceeds upon the basis that the greater includes the less.
BRENNAN J: Is it the case of the greater including the less or the proximal including the distal?
MR HUGHES: It is the proximal including the distal, but the important point is that the table treats each, although they are parts of a joined total limb, as separate items.
TOOHEY J: Only in the sense that it identifies the point at which amputation takes place, putting to one side for a moment that “loss” includes loss of use or loss of efficient use. If it were not for that expansive definition, you would simply ask the question, would you not, “Well, at what point was the limb severed? At or above the knee, then it attracts a certain percentage. Below the knee it attracts a lesser percentage”?
MR HUGHES: The difficulty is created, your Honour, it may be thought, by the expansive definition of “loss”. It covers not only amputation or in the case, for instance, of an eye, enucleation, it covers permanent loss of use, so that you might have a limb which is still attached to the body but quite useless or, a further alternative, permanent loss of efficient use. There is nothing obnoxious to the scheme of the table in the idea that the upper limb at or above the knee joint can suffer a greater or less permanent loss, for example, of efficient use from the permanent loss of efficient use of the lower part of the leg.
TOOHEY J: Except for this, Mr Hughes, that you then on that argument embark on a different inquiry, do you not? In the case of the actual amputation you simply look at the point at which the amputation takes place and only one result follows and only one item can be applicable. But on the approach that you are inviting us to take, where it is loss of use or loss of efficient use, you take a different approach somehow; you look at the limb in its totality and you say, well, is there a loss of use below the knee? You compensate for that. Is there a loss of use above the knee? You compensate independently for that.
MR HUGHES: It is a differential approach. I am not nailing my colours, as it were, to the mast of saying that in the case of amputation above the knee it would not be permissible to apply both items in the table, but it is a difficulty, but it is a difficulty that is not intractable or insoluble.
McHUGH J:Well except your case leads to this extraordinary proposition, it seems to me, that if somebody’s leg is amputated above the knee they are entitled to a total of $60,000; if they have sustained 60 per cent of the loss of the efficient use of the leg above and below the knee, they get $70,000.
MR HUGHES: Yes, that is an anomaly that I have to live with. The reason why the earlier cases do have some relevance, I suggest, is that they perhaps serve to establish the concept that anomalies are almost inevitable when the inflexibility of a table of injuries is substituted for something much more adaptable. It has to be remembered, as we mentioned in paragraph 13 of our outline, I suggest, that when the 1987 Act came into operation it abolished damages at common law for work-related injuries, and one had this inflexible table that was a substitute for a very important component in common law damages; the actual physical deformity.
That state of affairs did not last for long because in 1989 the legislature repented and restored common law damages on a modified scale with quite substantial limits, but the principle of common law damages was reintroduced. My learned friend has made criticisms of the President’s approach in J. Odlin Shopfitting International Pty Ltd v Kaljanac. May I just go through them. The first at page 638 under the heading just below half‑way down the page, your Honours, “Giving the Table its literal construction”.
His Honour relied upon the course of the legislative history and that is in the paragraph numbered 1. His Honour’s reliance on the legislative history is, we say, well founded because one only has to compare the terminology of the old table 16, which in relation to a leg in the same way it dealt with arms, there was loss of a leg or of the greater part thereof, one item, and the loss of the lower part of a leg the other item.
What my learned friend’s argument is really seeking to do, stripped to its essentials, is to restore the table 16 description “loss of a leg or the greater part thereof” or something like it and that ignores the tendency of the legislation with the passage of time to what the President has described as greater specificity, greater detail in the description and differentiation of parts of the body.
DEANE J: It becomes a bit of a challenge to your advocacy, if you take the case of loss of the arm at the elbow, in terms of trying to identify the thing that is lost.
MR HUGHES: Again, one has to be literal. The emphasis of my argument is on literalness. In dealing with a literal sort of table like this, I should make, and I can make no apology for that approach. At least it has the recommendation of anterior authority when one examines the earlier cases.
DEANE J: Except if one asked, “What is lost in the case of amputation at the elbow?”, the obvious answer would be, “The arm below the elbow.”
MR HUGHES: Yes, indeed, but that does not necessarily, your Honour, dispose of the whole problem because it may well be that in such a case there is a loss of efficient use of the arm above the elbow. The loss of ‑ ‑ ‑
DEANE J: I was just directing to Justice Kirby’s focus on the loss in terms of amputation.
MR HUGHES: Yes. It is to be noticed that Mr Justice Kirby, in his approach, perhaps did not fasten as much as he might have, usefully to his general thesis, on the different types of loss which are dealt with in this division of the Act. It is not only the amputation‑type of loss but the other two types of loss which I will not repeat because they are there in the outline.
DEANE J: I was really very mischievous, Mr Hughes.
MR HUGHES: Well, your Honour, that is welcome as a challenge. Going to the next matter of criticism that my learned friend raised of Mr Justice Kirby’s reasoning at item 2, all his Honour was saying in item 2 at the bottom of page 638 and the top of page 639 is that there is a recognition, not only in the table, but in sections 66 and 68, of the fact of life of multiple injuries.
The cap operates in a context of possible multiple injuries, each one of which is set out specifically in the table. So that all his Honour was saying there was drawing some support for his thesis from the fact that multiple injuries are recognised so that, his Honour would argue, and we would follow the argument, it is not strange or out of place for the table to operate in such a way as to provide lump sum compensation for two halves of the upper limb, permanent loss of efficient use or both the two halves, if I can use that expression, of the lower limb.
This is an argument that probably does not gain much strength, your Honours, from elaboration. It is a short point. In a way it is a point of impression. But we would rely on his Honour’s third reason, number 3 on page 639. His Honour said - note (c) does not help one in a case such as this:
There is no such single item in the case of the arm.
There is no single item, one would go on to add, in the case of the leg. If one fastens on the exact wording of the table, there is no single item which embraces the whole leg. It is essential to my learned friend’s argument that he should really be able to point to an item or thing in the table that does embrace the whole leg, in express terms.
TOOHEY J: Mr Hughes, could I just ask you this: I do not want you to take me to the sections but I take it that the amounts payable under the table of injuries are quite independent of any weekly payments of compensation?
MR HUGHES: Yes, they are.
TOOHEY J: What about in the case of total and permanent incapacity for work?
MR HUGHES: The amounts in the table are cumulative upon the weekly payments to which a worker is entitled in the case of total incapacity or, indeed, in the case of partial incapacity. In the old days the table under section 16 was a table which a worker could elect to take and, once he elected, that was it; he got no further weekly payments. But that has long since passed.
TOOHEY J: That is something different from redemption, is it, that you are speaking of?
MR HUGHES: Yes, your Honour. There can be redemption of weekly payments.
TOOHEY J: Yes. I was really thinking in the case of total and permanent incapacity for work, whether there was any lump sum payable additional to the table injuries.
MR HUGHES: No, not unless the liability to make weekly payments, your Honour, is redeemed, which is a process that can occur but only with the consent of the Workers Compensation Court.
TOOHEY J: Yes, thank you.
MR HUGHES: Because of the different structure of the 1987 legislation with its abolition of common law damages during the operation of the 1987 Act until amended in 1989, there was no redemption of weekly payments.
DAWSON J: Mr Hughes, why do you say there is no one single item in relation to note (c)? You are not contending if there is a total loss of the leg by amputation above the knee you also come within loss of either leg below the knee, do you?
MR HUGHES: Yes. We would say that that is the ultimately logical approach, but we have to live with the possibility.
DAWSON J: You do say that? But in other words, if I lost my leg above the knee I can claim both items under leg injury.
MR HUGHES: Yes, that is the ultimate position for which I would contend, but I have to say that in the light of what the Court of Appeal has said, there is a difficulty about that in the case of amputations, but that the difficulty can be put on one side in a case where one has, following the table, the ability to prove that there has been a permanent loss of efficient use of the upper leg at or above the knee, and the lower leg.
DAWSON J: But if loss of the leg above the knee comprehends loss of the leg below the knee, which it seemed to at first sighting, then you may say that there is - - -
MR HUGHES: Yes, but only in relation, we would venture to suggest, to loss meaning amputation, not permanent loss of use or permanent loss of efficient use. We have endeavoured to give an example in the outline; one might have a useless lower leg below the knee, but the upper leg above the knee may have some movement left in it which may enable the victim of the accident to use his upper leg for swimming purposes - kicking in the water. It is difficult to envisage the variety of circumstances to which this rather inflexible table has to be applied, but we would principally rely upon the reasoning of the President in Kaljanac’s case, and invite the Court to the general view that this is not a situation in which one can iron out all the anomalies; anomalies are inherent in this particular system or sub-system of compensation.
Well, Your Honours, the point is a short one and I doubt whether it can be usefully overelaborated. For those reasons we would submit that the appeal ought to be dismissed.
When the matter came before this Court on the special leave application, senior counsel then appearing for the worker, my client, submitted that as this was in the nature of a test case, and it was put forward as a test case, the worker should be protected for costs, in any event. As your Honours know, in the Workers’ Compensation Court, applicant workers are
never ordered to pay costs unless they have been fraudulent.
When this point was adumbrated at the conclusion of the argument on the special leave application, his Honour the Chief Justice suggested that, in effect, it might be appropriate to raise that matter on the hearing of the appeal. Given that this is a test case, I would submit that the appropriate course would be that in any event the respondent should be protected for his costs either by getting an order for payment even if he loses or, alternatively, second option, that he should not be ordered to pay the costs of the appellant if the appellant is successful. If the Court pleases.
BRENNAN J: Thank you, Mr Hughes. Yes, Mr Jackson.
MR JACKSON: Your Honour, as to the last matter raised, the question of costs, there is nothing I want to say in opposition to the proposition that we would pay the costs in any event of the proceedings in this Court.
DEANE J: I was just wondering, Mr Jackson, why, in view of the reference to the order in the previous case, a condition was not imposed at the leave stage here.
MR JACKSON: Your Honour, I wondered myself.
DEANE J: There must have been something operating ‑ ‑ ‑
MR HUGHES: Can I just say something? It might have been because, as I read the transcript, the point was not dealt with until after the Court had decided to grant special leave. It may have been regarded as therefore more suitable to deal with it here.
BRENNAN J: Thank you, Mr Hughes.
DEANE J: Yes, we had already granted it.
BRENNAN J: Yes, Mr Jackson.
MR JACKSON: Your Honours, may I just say a couple of things. The first is if one looks - if I can just go
to note (c) for a moment. Your Honours will see that it refers specifically in the part in brackets to:
(eg loss of 2 or more fingers to be compensated as a proportionate loss of the use of the hand).
Now, your Honours, it does not say anything specific about the position of legs, but if one goes to the case, whether it be loss by amputation or whether it be complete loss of use, for example, of a leg and if one looks at the parts of the table that otherwise would be applicable to it, you really start from the lowest thing, of the loss of use of any joint of any other toe, loss of any other toe and so on, and it goes through all those items and unless there were a provision such as - I am sorry, I will say two things about it. It is clear, of course, that section 66(2) would provide an upper limit, but at the same time the method of approach to the actual interpretation of it is indicated clearly enough, in our submission, by note (c) and that is the case whether one has loss of loss in the amputation sense or loss of use.
Your Honours, the definition of “loss” in section 65(1) applies throughout the division and it is apparent, in our submission, that throughout it includes both loss and loss of use and there is no particular reason why a different approach should be taken in relation to each.
Your Honours, I should say that our learned friend said at the commencement of his argument that there has been a greater tendency towards specificity as time has gone by, more and more items being added to the schedule. True that is but one should not draw too many conclusion from that because the Act was amended after this decision to include in the notes, notes (d1) and (d2) to take away in respect of future cases the issue that has arisen in this one, although this issue still applies to a large number of cases.
BRENNAN J: Thank you, Mr Jackson. The Court will consider its decision in this matter and adjourn until 10.15 am tomorrow morning.
AT 2.45 PM THE MATTER WAS ADJOURNED SINE DIE
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