The Workers Rehabilitation and Compensation Corporation v Marantonis

[1998] HCATrans 70

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A48 of 1997

B e t w e e n -

THE WORKERS REHABILITATION AND COMPENSATION CORPORATION (P G BUCK)

Applicant

and

DIMITRIOS MARANTONIS

Respondent

Application for special leave to appeal

BRENNAN CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 10.11 AM

Copyright in the High Court of Australia

MR T.L. STANLEY:   May it please the Court, I appear for the applicant in this matter.  (instructed by Donaldson Walsh)

MR C.J. KOURAKIS, QC:   If it please the Court, I appear for the respondent.  (instructed by Palios Meegan and Nicholson)

BRENNAN CJ:   Yes, Mr Stanley.

MR STANLEY:   If it please the Court, this application gives rise to a consideration of the principles applicable to the assessment of lump sum compensation under what is colloquially known as the table of maims in the South Australian workers’ compensation legislation and, for that matter, in workers’ compensation legislation in the other States and also in the Australian Capital Territory.

The application further gives rise to a consideration of the proper application of the principle identified by this Court in its decision in K.B. Hutcherson v Correia 183 CLR 50. The applicant submits that the principle established by Correia’s Case is that in assessing lump sum compensation pursuant to the maims table in respect of a disability to a limb which affects various parts of that limb, where the table provides for assessments in respect of discrete parts of that same limb, a single assessment only is to be made in order to avoid over‑compensation.

That principle emerges, in my submission, most clearly from a passage in the joint judgment of this Court at page 56 of the report.  In a passage commencing about point 2 on page 56, the Court identifies there:

the question is a fairly straightforward one.  The Table provides under the heading “Leg injuries” for loss of either leg at or above the knee and loss of either leg below the knee.  The points mentioned in the Table (“leg at or above the knee” and “leg below the knee”) identify, in relation to loss of use, the same maximum level of compensation as the loss by amputation at those points and require the same factors to be considered in the assessment of compensation, namely, the extent to which the entire limb below the uppermost point of affection is lost or its use is lost.  No doubt, medical opinions may differ as to the degree of loss in any case where the use of a limb has been affected.  But nothing in the Table or in the Act itself warrants making two assessments in the case of one leg.

The Full Court of our Supreme Court had to consider the application of that principle in the case at bar, and the court sought to distinguish that principle on a basis which, in the respectful submission of the applicant, is invalid.

Can I take the Court to the application book and to the judgment of the Full Court which commences at page 17 of the application book and in particular to a passage in the leading judgment of his Honour Justice Olsen which commences at the bottom of page 23.  At about line 32 on that page, his Honour says:

Much debate took place as to the correct legal approach to the proper application of the Third Schedule to the Act -

which, of course, is the maims table -

to physical situations such as that now under consideration.  Mr Stanley, of counsel for the respondent, drew attention to previous discussions of the Tribunal in the cases of Millman and Richardson; and also relied heavily on the reasoning of the High Court in K B Hutcherson Pty Ltd v Correia.

Over, on to the top of page 24, his Honour then recites the facts - - -

BRENNAN CJ:   We have read the judgments, Mr Stanley, we do not need you to read them to us.

MR STANLEY:   If the Court pleases.  Your Honour, at line 22 on page 24 his Honour then seeks to distinguish Correia from the case at bar on this basis:

In my opinion the type of situation discussed in Correia falls to be distinguished from other, different, situations in which a single injury gives rise to two quite different and separate losses of function.  In that case what was in issue was the loss of function of the back, by way of contrast with the loss of function of the legs.

On that basis, the court then was disposed to make an additional award to the respondent in this case for the loss of function that the respondent undoubtedly suffered to the stump of his finger after the traumatic amputation of the distal phalanx.  Having already received by way of lump sum compensation an award representing a 100 per cent loss of the distal phalanx, the court then saw fit to award the additional sum of compensation which represented a 10 per cent assessment of the loss of the whole finger. 

BRENNAN CJ:   What is the error?

MR STANLEY:   The error is, in my submission, that the principles established by Correia did not permit any additional award once an award had been made for the 100 per cent loss of the distal phalanx.  The consequence is overcompensation.  So much is made plain by the fact that the evidence before the court established that, at its highest, the disability suffered by the respondent represented a 30 per cent loss of function of the whole finger.  That would have entitled the applicant to an assessment of $5,640.

In fact, because the respondent had received an assessment based on a 100 per cent loss of the distal phalanx, he had received compensation in the sum of $8,460 and then the court awarded the additional sum of $1,880 for the further disability in respect of the remainder of the finger.  While the Act, and in particular the maims table, provides for a discrete assessment in respect of the distal phalanx, there is no such assessment available in respect of the proximal or middle phalanges of the finger.  Accordingly, the additional assessment that was made was for the loss of function of the whole finger notwithstanding that there was only two‑thirds of the finger left and the worker had already been compensated for the loss of the top digit at 100 per cent.

HAYNE J:   Mr Stanley, do you accept that if the worker suffers two injuries, he is entitled to be compensated for each?

MR STANLEY:   As a general principle, yes, but in this case there was only one injury.

HAYNE J:   Is the question that is raised in this case the question whether this worker suffered one or two injuries?

MR STANLEY:   If your Honour pleases, that is correct, in my submission.

HAYNE J:   Is that essentially a question of fact rather than one of principle?

MR STANLEY:   In my submission, in the approach that was taken by the Full Court, it is a question of principle rather than fact.  The court has approached it on the basis of the assessment of disabilities and, in my submission, the principle established by Correia makes plain that in respect of a single disability to a limb, one assessment only should be made.  There is in fact only one disability, even though it necessarily affects different parts of the one limb.

BRENNAN CJ:   That is the case in Correia.  There was only the one disability, though it may have been described by reference either to “below the knee” or “above the knee”, but here we have the disability which consists of the amputation on the one hand and the residual disability of what is left on the other.  Does that not make two?

MR STANLEY:   With respect, no, your Honour, because an amputation will necessarily leave a disability in the stump.  That is the inevitable consequence of the fact of amputation.  The extent of the disability may vary on the facts of each case, but once part of a limb has been amputated, what remains of the limb must necessarily suffer a loss of function.

BRENNAN CJ:   It is not simply a question of loss of function.  If you look at the opening part of Justice Olsson’s judgment where he describes what happened to the stump, it is clear that the disability is not that which flows from the amputation, but that which affects what was left.

MR STANLEY:   With the greatest of respect, I would submit that that is a distinction without a difference.  The extent of the disability ‑ ‑ ‑

BRENNAN CJ:   That might be the point.

MR STANLEY:   If your Honour pleases, it will always be the case that an amputation will reduce the function of that part of the limb that is left and it is important to recognise, in my submission, here that the further assessment that was made by the court was an assessment based on the loss of function of the whole of the finger, not of the proximal and middle phalanges.  The table did not permit a separate assessment to be made in respect of just those parts of the finger, so the only assessment that could be made was for the loss of function of the whole of the finger.  Now that, in my submission, is necessarily encompassed in the assessment for a 100 per cent loss of the top joint. 

As a matter of fact, I immediately must concede that the residual disability in the stump could vary from case to case and plainly, the disability in this case may have been greater than it might be in some other cases.  But that does not alter the fact that the approach taken by the court here, which, in my submission, flies in the fact of the principle established by Correia, results in over compensation to the respondent.

The distinction that is sought to be drawn by the court in justification for its approach is invalid.  There must necessarily only be one disability for the purposes of the assessment in this case, where there is only a single injury to a single limb and, in my submission, that is the proposition for which Correia is authority.  The approach that has been taken in other jurisdictions, particularly in the Court of Appeal in New South Wales, indicates that some doubt also attends the application of the Correia

principle in that jurisdiction and that in itself, in my submission, justifies the grant of special leave sought in this case.

The courts referred to a number of unreported decisions beginning with Baker v Crittenden, in which Justice Mahoney, as he then was, suggests that the principle established by Correia may need to be qualified or adapted.  In my submission, something of that kind has occurred in this case.  With respect, the delusion of the principle that has resulted is contrary to the direction clearly established by this Court in Correia’s Case.  The comments of Justice Mahoney in Baker v Crittenden have been subsequently echoed by the Court of Appeal in New South Wales in Lourdes House Hospital v Wheeler, particularly in the judgment of Justice Priestley, at pages 7 and 8.

I would also direct the Court’s attention to two decisions of the Court of Appeal in Australian Specialised Meat Products v Turner and Fobco v Harvey.  Australian Specialised Meat Products v Turner, in my submission, is an indication of the application of the Correia principle.  However, that application of the Correia principle was not followed by the Court of Appeal subsequently in Fobco v Harvey.  The failure of the Court of Appeal to follow the decision in Australian Specialised Meat Products v Turner in Fobco v Harvey, again is indicative of what, with respect, in my submission, is the confusion which has been permitted to creep into the proper construction of the principles applicable to such assessments as laid down by this Court in Correia, and is a further reason, in my submission, for the Court to grant this application for special leave beyond what, in my submission, is the necessity to correct the obvious error that has been made, with respect, by our Full Court in this case.  Unless there is anything further, may it please the Court.

BRENNAN CJ:   Yes, thank you, Mr Stanley. 

This case is distinguishable from K.B. Hutcherson Pty Ltd v Correia (1995) 183 CLR 50. It turns on its own facts and appears to be correct. For that reason, special leave will be refused.

MR KOURAKIS:   If the Court pleases, I apply for costs.

BRENNAN CJ:   Have you anything to say to that, Mr Stanley?

MR STANLEY:   I cannot resist that, your Honour.

BRENNAN CJ:   It will be refused with costs.

AT 10.28 AM THE MATTER WAS CONCLUDED