Terence Cameron v the WorkCover Corporation No. SCGRG 92/1894 Judgment No. 4139 Number of Pages 6 Workers' Compensation

[1993] SASC 4139

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), OLSSON(1) AND DEBELLE(3) JJ

CWDS
Workers' compensation - assessment and amount of compensation - Appeal against assessment of lump sum disability - consideration of 543 Workers Rehabilitation Compensation Act - whether subjective factors should be considered when assessing non-economic loss for a lump sum disability payment - worker receives payment for injuries sustained regardless of effect of injury on particular worker. Workers Rehabilitation and Compensation Actss3, 43. Haines v Bendall (1991) 172 CLR 60, not followed. Workers Rehabilitation and Compensation Corporation v Phillips (1991) 56 SASR 72 and Workers Rehabilitation and Compensation Corporation v Corney (Full Court, 3 March 1993, unreported), discussed.

HRNG ADELAIDE, 6 July 1993 #DATE 1:9:1993
Counsel for appellant:     Ms M Shaw
   with Ms J Palios
Solicitors for appellant:    Palios, Meegan and
   Nicholson
Counsel for respondent:     Mr J Mansfield QC
   with Mr P Corkery
Solicitors for respondent: Piper Alderman

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal by an injured worker against the decision of the Workers Compensation Appeal Tribunal ("the Tribunal") in relation to an appeal by him from the determination of a Review Officer. The point in issue is the correct interpretation of section 43 of the Workers Rehabilitation and Compensation Act ("the Act"), in the form in which that statute stood as at 17 June 1988. 2. It has always been common ground that, by virtue of his work duties for his employer, the appellant developed chronic right lateral epicondylitis, which manifested itself in June 1988. He was unable to continue in his employment as a steel fixer and lodged a claim for compensation with the Workcover Corporation. On 7 November 1990 the Corporation determined that:- (a) the worker's disability was permanent and compensable under the Act; (b) as the result of that disability the worker had lost 20% of the full efficient use of his right arm below the elbow; and (c) he was therefore entitled to compensation for non economic loss, by way of a lump sum in the amount of $11,216, being 20% of the Third Schedule amount applicable to the loss of an arm below the elbow. On an application to review the Review Officer varied the determination by stipulating that the compensation payable was 20% of the Third Schedule amount payable for loss of the full efficient use of the right arm at or above the elbow i.e. $12,618. In the course of her reasons the Review Officer pointed out that all medical practitioners who had examined the worker were agreed that the practical effect of his disability, expressed in physical terms, was that the worker had lost 20% of the full efficient use of the right arm as a whole. The worker was dissatisfied with that finding and appealed to the Tribunal. In essence he contended that the determination was erroneous, in that it had failed to take into consideration the effect that the disability had on him, as an individual worker, in terms of pain and suffering, loss of amenities of life and any other relevant loss of detriment of a non economic nature, as adverted to in the statutory definition of the expression "non-economic loss". 3. The Tribunal rejected that contention. In so doing it said:-
    "In our opinion in calculating the lump sum payment for a
    permanent disability contained in the third schedule, no
    cognisance is to be taken of the degree of pain and suffering,
    loss of amenities of life, loss of expectation of life and other
    losses or detriments of a non-economic loss as those matters
    affect the individual worker. The only qualification we would
    make to that general statement is that, in accordance with well
    established practice, pain and suffering, insofar as they cause a
    loss of use of a faculty, may validly be taken into consideration
    in calculating that loss. But the general intent is that all
    workers whose disability is mentioned in the schedule and whose
    loss of function is identical are to receive the same lump sum
    payment no matter how that disability impacts on their personal
life." 4. It went on to record that, in the event that its reasoning was held incorrect, it considered that, having regard to the matters adverted to in the statutory definition of non economic loss, the appropriate percentage loss of use suffered by the worker would be a 33% loss of use of the arm at or above the elbow. 5. In the form in which it stood at that time, the relevant provisions of section 43 of the Act were couched in these terms:-
     "43. (1) Subject to this Act, where a worker suffers a
    permanent disability and the disability is compensable under this
    Act, the worker is entitled (in addition to any entitlement apart
    from this section) to compensation for non-economic loss by way of
    a lump sum.
     (2) Subject to this section, the lump sum shall be a percentage
    of the prescribed sum determined by reference to the third
    schedule.
     (3) Where a compensable disability in respect of which
    compensation is payable by way of a lump sum under subsection (1)
    is not mentioned in the third schedule, the lump sum shall be
    fixed by the Corporation as a percentage (not exceeding 100 per
    cent) of the prescribed sum having regard to -
     (a) the nature of the disability; and
     (b) the extent to which the worker's ability to lead a normal
    life has been impaired by the disability.
     (4) Where the compensable disability consists of the permanent
    loss of a proportion (but not all) of the full efficient use of a
    physical, mental or sensory faculty, the worker is entitled to a
    percentage of the compensation payable for total loss of the
    faculty equal to the percentage of full efficient use lost by the
worker." 6. The expression "non-economic loss" was defined by section 3 of the Act as meaning:- "(a) pain and suffering (b) loss of amenities of life (c) loss of expectation of life (d) any other loss or detriment of a non-economic nature." 7. It is unnecessary to reproduce the Third Schedule to the Act in these reasons. Suffice it to say that it was titled "Lump Sum Compensation" and essentially consisted of a table comprising two columns. 8. In the left hand column, under the heading "Nature of the Disability" it set out a list of specific physical disabilities. In the adjacent column, opposite each listed disability, it set out a percentage of the prescribed sum payable in respect of that disability. One of the disabilities so listed was "Loss of arm at or above the elbow". At the relevant date the prescribed sum was $70,100. 9. As already emerges, the Third Schedule is, by virtue of subsection (4) of section 43, to be applied on the basis that, where a compensable disability consists of a proportion (but not all) of the full efficient use of a physical, mental or sensory faculty, the worker is to be entitled to a percentage of the compensation payable for total loss of the faculty equal to the percentage of full efficient use actually lost by the worker. 10. The short point made on behalf of the worker, both before the Tribunal and this Court, is that, having regard to the definition of the phrase "non-economic loss" in section 3, the award of compensation pursuant to section 43 is not to be confined to the objective nature of the injury and the mere physical or "mechanical" extent of the loss of use of the bodily part affected, but is intended to take into account its subjective effect on the worker personally and the impact on that worker to perform particular functions or activities previously performed. In so contending, counsel for the worker sought toderive comfort from Hainesv Bendall (1991) 172 CLR 60 at 71. 11. With all due respect it seems to me that that decision is of no assistance for present purposes. The High Court was there focusing on provisions of a New South Wales statute which did not contain an equivalent of section 69 of the South Australian Workers Compensation Act, 1971 or the later section 43 of the Act now presently under consideration. It became necessary for the High Court to determine the scope of compensation payable to the worker in New South Wales and how the payment of such compensation impacted on an award of common law damages. 12. By way of contrast the South Australian statute sets out to spell out, in clear terms, the precise nature of the compensation payable. The problem addressed in Haines v Bendall simply does not arise. 13. Resort was also had by Mrs Shaw (of counsel for the worker) to the decisions of the Full Court of this Court in Workers Rehabilitation and Compensation Corporation v Phillips (1991) 56 SASR 72 and Workers Rehabilitation and Compensation Corporation v Corney (Full Court, 3 March 1993, unreported). 14. As to the former she drew attention to what fell from the Chief Justice when, in discussing the approach proper to be adopted to an assessment under subsection (3) of section 43 (i.e. in circumstances in which the disability in question is not specifically adverted to in the left hand column of the Third Schedule), he said:-
    "Non-economic loss is essentially subjective in character.
    It is the adverse impact, other than that of an economic nature,
    of the disability upon the disabled individual. It is necessary,
    therefore, in assessing the gravity of the non-economic loss, to
    consider its effect upon the disabled individual including that
    individual's lifestyle. It is not to the point that the disabled
    individual is precluded from engaging in activities which others
    might regard as a significant aspect of a normal life for them, if
    the particular individual would never have engaged in those
    activities so that they were not at the time of the compensable
    trauma an actual or contemplated part of his normal life.
    Conversely, deprivations of an activity which forms part of the
    normal life of the disabled individual must be taken into account
    notwithstanding that it might not be part of the normal life of
    the generality of other people. Moreover, the degree of the
    adverse non-economic impact of the disability must be assessed by
    reference to the importance of the deprivation suffered, to the
    disabled individual's normal life, irrespective of how it might be
regarded by others." 15. As I understood her, Mrs Shaw contended that this line of reasoning supported her argument that, in applying the provisions of section 43 and in interpreting the Third Schedule, it was necessary to take into account subjective factors of the nature of those adverted to in the definition of non-economic loss, in striking a percentage figure for the purposes of subsection (4) of section 43. 16. In my opinion what fell from the Chief Justice is not relevant to that issue and affords no support for the contention advanced. The learned Chief Justice was in fact directing his attention solely to the correct interpretation of subsection (3) of section 43, which concerns itself with the approach proper to be adopted to the assessment of lump sums in respect of permanent disabilities not specified in the Third Schedule. What he there said and what was also said in Workers Rehabilitation and Compensation Corporation v Corney (supra) (which also focused on subsection (3)) has no logical relevance to the subject matter with which subsection (4) concerns itself. 17. So it was that, in the case of Phillips, Debelle J was constrained to comment:-
    "Where the disability is listed in the Third Schedule of
the Act, injured workers who suffer the same disability will
    receive the same lump sum for non-economic loss notwithstanding
    that the disability might affect individual workers in different
    ways. In other words, notwithstanding the fact that a particular
    disability might result in a greater degree of non-economic loss
    for some workers and a lesser degree of non-economic loss for
    others, all injured workers receive the amount mentioned in the
    Third Schedule for their disability. The Third Schedule provides
    a common level of awards for non-economic loss for a particular
    disability without regard to the particular impact of the
    disability on the individual worker and without regard to any
    particular talent, accomplishment, or other skill in which the
    individual worker might engage when not at his workplace. All of
    this is trite law. But it seems to me to be relevant when
    considering the question raised for the opinion of the court in
the case stated." 18. With respect, this summation is plainly correct and was that adopted by the Tribunal. It is to be observed that subsection (4) clearly concerns itself with disabilities actually listed in the Third Schedule and, in specific terms, adverts to the permanent loss of a proportion (but not all) of the relevant "full efficient use of a physical mental or sensory faculty". As with total loss situations the subsection and the Schedule are directing their attention to the objective, physical sequelae of injuries giving rise to specific disabilities, whether the resultant loss is total or partial. The scheme of the legislation in that regard patently ignores consideration of the subjective effect of a particular loss on a worker. In that regard the legislation in force at the time of the onset of the appellant's disability does not differ from that which preceded it. 19. By way of contrast with that concept, the legislature has gone to some pains to spell out a somewhat different approach in relation to those more non specific type, permanent disabilities not listed in the Third Schedule. Subsection (3) of section 43 expressly enjoins the Corporation to fix a percentage for disabilities of that type having regard not only to the physical nature of the disability, but also, as the Court emphasised in the case of Phillips, "the extent to which the worker's ability to lead a normal life has been impaired by the disability". That is a fundamentally different, discrete approach limited to a particular situation, not here relevant. It would be both strange and inconsistent if it was necessary to adopt a different conceptual approach to situations of partial disability under subsection (4) than that applicable by virtue of subsection (2) to total disability, in respect of the same generic type of physical condition. 20. In my view the reasoning and decision of the Tribunal was plainly correct. 21. As it pointed out, there are three compelling reasons why it is inappropriate to introduce a subjective element, based on the definition of non-economic loss, into the assessment in case such as that now under consideration. As the Tribunal expresses those reasons:-
     "First, the 'nature of the disability' is already described
    in the schedule. In the instant matter it is 'loss of arm at or
    above elbow'. Accordingly there does not seem to be any scope or
    reason to include in the nature of the disability matters that are
    not included in the statutory description.
     Secondly, the wording and history of subsection (4) suggests
    that the assessment for the loss of use of a limb or faculty
    should be made in accordance with the long established method.
    That is, that where less than the total permanent loss of use of a
    particular limb or faculty of a worker has occurred, the loss is
    to be calculated purely as a percentage of the full efficient
    functional loss sustained. Thirdly we consider that the
    definition of 'non-economic loss' is merely indicative of the
    four features for which the lump sum payment for a schedule
    disability is being made." 22. I consider that the validity of that summation is beyond question. 23. I would, accordingly, dismiss this appeal.

JUDGE2 KING CJ I would dismiss this appeal for the reasons given by Olsson J.

JUDGE3 DEBELLE J I agree that this appeal should be dismissed for the reasons given by Olsson J.