(3) Non-Economic Loss
544The assessment of non-economic loss damages is to be undertaken in accordance with the relevant provisions of the Workers' Compensation Act 1987.
545I note that pursuant to Schedule 3, Part 18 of that Act, amendments to the Act in 2001 are not applicable to coalminers. Accordingly, the Act is to be applied as though the 2001 amendments had not been enacted.
546Section 149(1) of that Act defines non-economic loss as follows:
"Non-economic loss means:
(a) Pain and suffering, and
(b) Loss of amenities of life, and
(c) Loss of expectation of life, and
(d) Disfigurement."
547In accordance with the provisions of s 151G(2) of that Act, the plaintiff is to be compensated as a proportion of the maximum prescribed amount according to the severity of the non-economic loss.
548Section 151G(2) is in the following terms:
"The amount of damages to be awarded for non-economic loss is to be a proportion determined according to the severity of the non-economic loss, of the maximum amount which may be awarded."
549The maximum amount for the purposes of the present case, for the purposes of s 151G(2), is the amount of $350,600.
550The legal test to be applied in the assessment of non-economic loss under the provisions of s 151G(2) have been the subject of consideration by the Court of Appeal on a number of occasions. In that respect, the following propositions have been established by the relevant caselaw:
(i) Section 151G(2) involves an exercise in evaluative judgment, the parameters of which cannot be defined with precision: Southgate v Waterford (1990) 21 NSWLR 427 at 442; Dell v Dalton (1991) 23 NSWLR 528 at 532 (per Handley JA) referring to Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at 71-72 and Rabay v Bristow [2005] NSWCA 199 at [62]-[67].
(ii) The exercise required to be undertaken in determining the severity of a plaintiff's non-economic loss is neither scientific nor normative. Whilst it is not wholly at large, it nevertheless involves an exercise of discretion: Rabay v Bristow, supra, at [62].
(iii) The assessment of non-economic loss being an evaluative in nature is one in respect of which minds may reasonably differ: Woolworths Limited v Lawlor [2004] NSWCA 209 at [14].
(iv) The nature of the evaluative task involves, inter alia, matters of fact and degree. In Rabay v Bristow, McColl JA at [64] referred to the proposition as expressed by Handley JA (with whom Kirby P and Priestley JA agreed) in Dell v Dalton, supra, where his Honour observed in respect of a trial judge's conclusion for the purposes of assessing non-economic loss pursuant to s 79 of the Motor Accidents Act 1988:
"... the ultimate finding that a particular case is or is not 'a most extreme case' will not readily be susceptible of appellate review. Like other issues in the assessment of damages for personal injuries its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common-sense and judgment."
551It is necessary for the relevant matters established in evidence to be reviewed and considered in reaching a determination of non-economic loss. The meaning, impact or significance of those matters are to be considered in the exercise of the statutory discretion: see, for example, Franklins Limited v Burns [2005] NSWCA 54 at [54]-[60].
552In accordance with the approach discussed in the lastmentioned case, the plaintiff's position prior to the accident is to be considered including his health, lifestyle and activities in which he engaged as well as his participation in the workforce up to that time.
553The evaluation is also to take account of the plaintiff's position following the accident, in particular, his disabilities and restrictions consequent upon the injuries sustained, and the impact that has had, including in particular, how the injury and its consequences has interfered with the injured person's social or recreational and vocational activities to date and into the future. In the light of such matters, appropriate findings of fact and conclusions concerning the extent of the plaintiff's disabilities may be made.
554Prior to the accident on 1 July 2010, the plaintiff had been an active person in both recreational activities and in the workforce. He had previously over many years enjoyed fishing and he had been an A-grade golfer, although his work commitments had curtailed that pursuit prior to the accident. He had been an active person enjoying family life, social life, and I accept his evidence that he enjoyed his work as a Mine Deputy.
555He had worked in the mining industry for approximately thirty years, first taking up employment in 1980 with the Centennial Mining Group. He obtained his qualifications of a Mine Deputy in 1995 and thereafter worked as such at the Southands Colliery, the Newstan Mine, the Mandalong Mine and thereafter at the Awaba Mine.
556Although he had had a number of incidents requiring medical attention, as discussed earlier in this judgment (including in particular injury to the low back, neck and ankle in April 2007, twisted ankle and left knee in December 2007 and a left knee condition in June 2008) he pursued his role as Mine Deputy up until 1 July 2010, performing shift work and overtime.
557The plaintiff's personal life has been severely impacted by his injury, his chronic pain and disabilities, including the need for treatment and two operations. The low back pain suffered before and after those operations and the associated left leg symptoms including numbness and foot drop has, on findings I have earlier made, prevented him from returning to work. In consequence of the injuries and disabilities sustained in the accident he has lost his career as Mine Deputy and has been permanently incapacitated for the last four years. He will, in accordance with findings earlier made, remain permanently and totally incapacitated. That loss has been a significant one. His restrictions, chronic pain and associated disabilities have greatly altered his life experience and this will continue indefinitely. His disabilities, of course, will permanently prevent him from engaging in many of the social and all of the recreational activities he enjoyed prior to the accident.
558In applying the legal test required in determining the plaintiff's non-economic loss for the purpose of s 151G, I take into account the findings to which I have referred and the significance of those findings to the plaintiff having regard to his pre-injury position, which was that he was an active participant in the community and the workforce holding a trusted and responsible position as a Mine Deputy and derived considerable enjoyment from the same. He, before the injury, had a satisfying close relationship with his wife and family.
559I have, of course, had regard to the submissions that have been made on behalf of both the plaintiff and the defendant. Mr Dooley, on behalf of the plaintiff, submitted that the proper assessment of non-economic loss would be on the basis of a proportion of 60% of the maximum amount which may be awarded under s 151G(2). Mr Joseph of Senior Counsel, for the defendant, submitted that the proportion should be 25% of the maximum amount.
560Upon a consideration of the matters to which I have referred, I have concluded that a proper entitlement of non-economic loss under s 151G(2) in this case, is a proportion of 55% to the maximum amount that may be awarded, namely, $192,830.