Workers Rehabilitation and Compensation Corporation v Gregory Thomas Corney No. SCGRG 92/2134 Judgment No. 3844 Number of Pages 3 Workers' Compensation Assessment and Amount of Compensation (1993) 59 Sasr 451

[1993] SASC 3844

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ, OLSSON AND PERRY JJ

CWDS
Workers' compensation - assessment and amount of compensation - Lump sum pursuant to 5.43 Workers Rehabilitation and Compensation Act - non-economic consequences of impairment of earning capacity element of non-economic loss for purpose of assessment of lump sum pursuant to

HRNG ADELAIDE, 3 March 1993 #DATE 3:3:1993
Counsel for appellant:         Mr G L Muecke
Solicitors for appellant:     Thomsons
Counsel for respondent:        Mr S C Cole
Solicitors for respondent:     Nelson Mansfield

ORDER
Appeal dismissed.

JUDGE1 KING CJ: This is an appeal pursuant to s.100 of the Workers Rehabilitationand Compensation Act 1986 on a question of law against a determination of the Workers Rehabilitation and Compensation Tribunal. 2. The respondent contracted the disease of allergic contact dermatitis in consequence of exposure to certain materials used in the course of his employment. 3. He sought a lump sum by way of compensation pursuant to s.43 of the Workers Rehabilitation and Compensation Act for non-economic loss sustained in consequence of that injury. 4. The Corporation rejected the claim. On review, a review officer allowed a lump sum calculated on the basis of 15% of the prescribed sum pursuant to ss.(2) of s.43. The respondent appealed to the tribunal and the tribunal allowed the appeal and increased the lump sum to 30% of the prescribed sum. 5. Section 43 so far as material is as follows:
    "(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." 6. At the relevant time the section contained a ss.(3) which has since been repealed. That subsection was as follows: "Where a compensable disability, in respect of which compensation is payable by way of a lump sum under ss.(1), and is not mentioned in the third schedule, the lump sum shall be fixed by the Corporation as a percentage (not exceeding 1% 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 disabilities." 7. There is no doubt that the condition of "allergic contact dermatitis", from which the respondent suffers, is permanent, and that it constitutes a permanent disability. It follows that the respondent is entitled to compensation for the non-economic consequences of that disability. 8. In the course of the reasons given by the Tribunal for its decision, the Tribunal said:
    "The most profound effect on him is in his ability to work. As
    Mr Gilchrist argues, and as Mr Cole in fact concedes, it is
    important to keep steadily in mind that the task is one of
    compensating for non-economic considerations. The economic
    considerations are to be compensated otherwise, namely, by
    weekly payments and/or redemption. However, it would be
    erroneous to regard employment, career, or work as only
    providing economic aspects. It is much more than that, it
    provides very often a person's sense of selfworth, of dignity
    and of participation in the community. There are also features
    of seeing oneself in terms of the provider for the family, and
    of fulfilling the features of satisfaction and achievement that
    work can bring. In our view these are very important matters
    when considering the non-economic loss." 9. There is no doubt that the worker's disability constitutes a substantial incapacity to work. He is permanently deprived of his ability to pursue his calling as a plumber, and he is greatly restricted of the types of work which will be available to him. It is reasonable to infer that he may experience long periods of unemployment and uncertainty as to employment. 10. The respondent gave evidence of negative feelings which he experiences as a result of his inability to work to support himself and those who are dependant upon him. 11. Mr Muecke, who appeared for the appellant, has argued that the passage to which I have quoted from the reasons of the Tribunal, discloses an error of law. He has contended that the matters which the Tribunal mentions in that passage as matters of non-economic loss, where they result from the loss of the ability to engage in employment, are to be regarded for the purposes of this Act as economic and not non-economic in nature. 12. The expression "non-economic loss", which is used in s.43 of the Act, is defined in s.3. I do not quote the definition in full. It is sufficient to say that it includes loss of the amenities of life and any other loss or detriment of a non-economic nature. 13. The loss of a person's capacity to pursue his calling or the substantial diminution of a person's capacity to engage in remunerative work, undoubtedly has economic consequences, and those consequences are compensated for in the various provisions of the Act relating to income maintenance. 14. It seems to me, however, that those factors, namely the deprivation of the ability to pursue a person's ordinary calling and the restriction on a person's capacity to engage in remunerative work, may also have non-economic consequences. A person's inability to pursue his calling or to obtain regular work may affect him in a non-economic way. 15. There is a clear distinction to my mind between the "economic consequences" of incapacity to work, and the "non-economic consequences". 16. The Tribunal in the passage, which has been quoted, referred to aspects of the inability to work, which are non-economic in character. They certainly fall within the ordinary concept of non-economic loss. They also fall within the definition of non-economic loss in s.3 of the Act. 17. Counsel has been unable to point to any other provision in the Act which would limit the concept of non-economic loss as it is used in s.43. 18. Mr Muecke pointed to the income maintenance provisions and submitted that the matters mentioned by the Tribunal are compensated for in those provisions. That is plainly not so. The income maintenance provisions deal with compensation for the economic consequences of disability. They do not make provision for the sort of non-economic detriment which is referred to by the Tribunal in its determination. 19. In my opinion the appellant has failed to demonstrate that there is any error of law in the approach taken by the Tribunal. The appeal before this court, of course, is on a question of law only, and we are not concerned with the correctness or otherwise on the facts or the merits of the decision of the Tribunal. In my opinion, therefore, the appeal should be dismissed. The order of the court is that the appeal be dismissed.

JUDGE2 OLSSON J I agree.

JUDGE3 PERRY J I agree.