CULLEN v SEMA

1. Whether there was sufficient material before the trial judge on which to base the assessment of the value of the loss suffered by the plaintiff,

2. Whether the methods used by the trial judge to assess the value of the lump sums that the plaintiff would have obtained at common law and at workers compensation were inconsistent.

The plaintiff was not required to show that the sum of the likely s66 and s67 amounts was greater than the settlement figure.

There was ample evidence from the plaintiff, including expert medical opinion, of the facts concerning his injuries and their effects on him. These were the primary materials a worker would need to put before the Compensation Court. The judge did not require expert evidence about the likely figure the Compensation Court would have awarded as a pre-requisite to forming an opinion. Williams v Bodewes did not establish any general rule about the necessity of expert evidence for the making of such an assessment by a judge in another jurisdiction.

There was no material inconsistencies in the methods used by the judge in the assessment of the value of the lump sums that the plaintiff would have obtained at common law and at workers compensation.

The notional date taken by the trial judge as being relevant for the assessment of the s66 and s67 amounts was correct.

Williams & Ors (t/as Harris Wheeler) v Bodewes (unreported, Court of Appeal, 1 October 1997) considered.

The trial judge discounted the s66 and s67 assessments by 15%. It appears that the judge gave some weight to the possibility, by reason of the opinion of two doctors, that the plaintiff was not suffering from any continuing disability. There is no justification for this court to interfere with the judge's view. The cross-appellant has not demonstrated any error in the calculation of the s66 and s67 assessments.

Proceedings at first instance: nature of appeal and cross-appeal.

Mr C Sema brought an action as plaintiff in the District Court against the first defendant, a solicitor, and the second defendant, a barrister, claiming damages for losses he alleged he had suffered because of their negligent handling of litigation on his behalf.

His Honour Judge Sinclair QC heard his case and held that the solicitor had been negligent but that no case had been established against the barrister. He gave judgment against the first defendant in the sum of $46,379. He gave judgment for the second defendant against the plaintiff. He ordered the first defendant to pay the plaintiff's costs of the action, he ordered the plaintiff to pay the second defendant's costs of the action and ordered the first defendant to pay 50% of the costs the plaintiff had to pay to the second defendant.

The first defendant appealed. The appeal was directed to the judge's findings about damages. The findings of breach of duty against the solicitor were not challenged. The plaintiff cross-appealed. His ground was that the damages should have been greater.

The professional negligence case arose from the following circumstances. The plaintiff was injured at work on 29 November 1987. His injuries made working more difficult and his employer, Kellogg (Australia) Pty Ltd (Kellogg), in his words "finished me up" in about February 1989. Kellogg apparently took the view that he had abandoned his employment. It is not necessary to delve into what the exact position was. It is clear from Kellogg's letter dated 7 April 1989 (Ex P4) that his employment came to an end no later than that day. It is also undisputed that the plaintiff engaged the services of the first defendant on or about 11 April 1989.

Both the date of the worker's injury and the date when he engaged the first defendant fell in a period when the plaintiff had no common law rights against Kellogg. The Workers Compensation Act 1987, which commenced on 30 June 1987, abolished any common law right of a worker to recover damages from the worker's employer: s149.

Pt3 Division 4 of the 1987 Act, headed "Compensation for non-economic loss" and containing s65 to s73 and a Table of injuries following s73, provided compensation for two types of damage, principally by s66 and s67. S66 entitled a worker who as a result of injury had suffered loss of a thing mentioned in the Table to compensation in an amount to be decided by reference to figures set out in the Table. S67 entitled a worker who had suffered a loss mentioned in the Table to compensation for pain and suffering resulting from that loss, in an amount not exceeding a specified amount, subject to certain limitations.

The 1987 Act by s9 and s33, continued the system under the previous legislation of entitling workers to weekly payments of compensation for total or partial incapacity for work resulting from work related injuries. The 1987 Act also continued the system under previous legislation of providing compensation for the cost of medical, hospital and like treatment.

Thus when the plaintiff first engaged the first defendant the principal remedies he might seek were weekly compensation, medical and the like expenses, and compensation under s66 and s67.

However, the solicitor did not commence any proceedings until 1990. By that time the plaintiff's common law rights against Kellogg had been retrospectively restored, but in a modified form, by the Workers Compensation (Benefits) Amendment Act 1989 (Act 133/89) which was assented to on 5 September 1989 and commenced on | February 1990. Division 4 of Pt3 remained in the 1987 Act, qualified by some new provisions designed to preclude recovery for non-economic loss both under the Act and at common law. These provisions were principally contained in a new Pt5, headed Common Law Remedies comprising s149 to sISIAA.

Consequent on Act 133/89, the plaintiff from 1 February 1990 could seek workers compensation and modified common law damages for his 1987 work injury.

It was not however possible to get full compensation and full damages. S151A(2) said a worker to whom compensation was payable under the Act was not entitled to permanent loss compensation and common law damages from the employer for the same injury. ("Permanent loss compensation" was defined by s151A(1) as meaning "compensation under Division 4 of Pt3 (Compensation for non-economic loss)".

S151A(2) further provided that a worker must elect whether to claim permanent loss compensation or damages. The election to claim damages was made by commencing proceedings in a court to recover the modified common law damages or by accepting payment of those damages. The election to claim permanent loss compensation was made by accepting payment of the permanent loss compensation. In the former case the worker ceased to be entitled to permanent loss compensation and in the latter ceased to be entitled to recover modified common law damages from the employer.

S151G restricted the amount which might be recovered in a common law action by a worker against the employer for non economic loss and s151H restricted what such a worker might recover for economic loss.

There were no restrictions on the worker's entitlement to seek weekly compensation.

In some cases it might be difficult for a worker to know whether he or she would be better off overall by electing to seek modified common law damages or permanent loss compensation under the Workers Compensation legislation. If a worker elected to seek modified common law damages and could not prove a claim of sufficient size (because of s151G and s151H restrictions) the claim could fail altogether, with the result the worker got nothing at common law and no permanent loss compensation either.

At the time when the first defendant commenced proceedings on the plaintiff's behalf the problem of which election to make could be at least partially solved in the following way. The injured worker could apply for permanent loss compensation under s66 and s67 and take the application to the stage of an award, but not yet to the acceptance of payment of any compensation. In the light of knowing the amount now available (but not yet accepted) under the award, the worker could then measure that against an assessment of the likely recovery if the worker then commenced common law proceedings against the employer. Following this assessment the worker could decide whether or not to commence common law proceedings.

To be able to carry out this method it was necessary for the worker to delay commencement of any common law proceedings until the workers compensation proceedings had reached the point where the worker knew the amount of the awards under s66 and s67 but had not yet accepted any payment pursuant to them.

The facts, and the trial judge's method of approach.

As indicated earlier, the solicitor, after being retained in April 1989 took some time to get started on his client's business. In January 1990 he briefed the second defendant to advise in regard to the plaintiff's common law claim. In October 1990 the solicitor filed a statement of claim seeking modified common law damages in the Supreme Court from Kellogg. In September or October 1990 the solicitor filed an application for workers compensation in the Compensation Court. By the filing of the statement of claim seeking common law damages from Kellogg and by operation of s151A the solicitor, as agent for the plaintiff, brought about an irrevocable election by the plaintiff that he ceased to be entitled to permanent loss compensation in respect of his injury.

Sinclair DCJ considered the evidence concerning the advice given by the first defendant to the plaintiff and the sequence of events relating to the claims commenced by the first defendant on the plaintiffs behalf. He found that the following facts had been established:

"1. The first defendant acted as solicitor for the plaintiff from April 1990 until February 1993.

2. He was retained to pursue the plaintiff's rights to compensation and/or damages in respect of his injury at work on 27 November 1987.

3. The plaintiff was completely ignorant of his rights.

4. The first defendant ought to have been aware of the law in relation to the election between common law and workers compensation s151A and s151B and advised the plaintiff accordingly.

The first defendant failed to give the plaintiff any advice appropriate to the circumstances of the plaintiff.

The first defendant was in breach of his duty of care toward the plaintiff.

The second defendant was not negligent as alleged or at all."

The following matters were also common ground at the appeal. The Plaintiff's workers compensation claims were decided in the Compensation Court by Duck CCJ on 1 September 1994. The judge recorded that as those claims had been originally pleaded there was a claim for weekly payments of compensation and permanent loss claims resulting from the plaintiff's injury. He recorded also that the respondent in the Compensation Court (Kellogg) had pleaded amongst other things that the plaintiff had elected by commencement of proceedings at common law to pursue those rights and "hence was prevented by virtue of the provisions of s151 [sic] of the Workers Compensation Act from bringing an application for permanent loss compensation in this court".

"Some exhibits were tendered from both sides with a view to dealing with the matters raised by those pleadings. In the upshot, the applicant has effectively withdrawn his permanent loss claims pursuant to the Workers Compensation Act, and ultimately, in respect of those matters I will enter an award for the respondent."

He then considered the plaintiff's claims for weekly compensation and entered an award in the plaintiff's favour pursuant to s40 of the 1987 Act from 8 April 1989 to the date of his judgment, and continuing, in the sum of $200 per week. He made other consequential orders in favour of the plaintiff.

Agreement was reached between the plaintiff and Kellogg in the common law proceedings and on 30 May 1995 terms of settlement were filed and judgment entered in accordance with orders made by consent. The relevant terms of settlement were that judgment should be entered for the plaintiff in the sum of $150,000 inclusive of costs and it was noted that the judgment sum was clear of payments made to the plaintiff on behalf of Kellogg pursuant to the Workers Compensation legislation. The consent orders were simply that: 1. the defendant pay the plaintiff $150,000, and 2. each party was to pay its own costs.

The effect of bringing the common law claim for damages to an end by the settlement was to terminate also the plaintiff's remaining rights under the Workers Compensation legislation, the most important of which was the right to the weekly payments of compensation ordered by the Compensation Court. These rights had not been affected by the election negligently achieved by the solicitor's filing of the statement of claim. Only the plaintiff's rights under s66 and s67 had been terminated by that action.

Sinclair DCJ decided the plaintiff was entitled to damages. Stated in its simplest form the reasoning which led to his decision consisted of two steps. One step was that after considering the facts of the plaintiff's common law case and the various restrictions on damages the plaintiff would have encountered under the modified law, he assessed the plaintiff's chances of getting a judgment in his favour as nil. The other step was to assess what awards the plaintiff would have obtained in the Compensation Court pursuant to claims under s66 and s67 had the election stopping him doing so not been made. The s66 figure was $18,870, the 67 figure $6,995.

Once the trial judge had taken these two steps, it followed that since the plaintiff had lost his right to the amounts he would have obtained under s66 and s67 because of the first defendant's negligence in bringing about his election to pursue his common law claim to the exclusion of his workers compensation claims under s66 and s67, and since the common law claim was worthless, the plaintiff had lost what he would have obtained under s66 and s67. The two amounts, with interest, totalled $46,379.

Each of the two main steps in the reasoning that I have summarised was attacked by the first defendant in the appeal.

The trial Judge's assessment of modified common law damages.

Non-economic loss. $151G(2) and s151G(3) had the effect that the maximum amount which could be awarded under the modified common law damages system for non-economic loss was $180,000. This could be awarded only in a most extreme case. The amount to be awarded in other cases was to be a proportion, determined according to the severity of the non-economic loss, of the maximum of $180,000.

The trial judge assessed the severity of the non-economic loss as a proportion of a most extreme case, as 20%, in money terms, $36,000.

S151G(4) provided that if the amount of non-economic loss were assessed to be $45,000 or less no damages for non-economic loss were to be awarded.

S151G(6) said that if the injury concerned was received before 4pm on 30 June 1989 the figure of $45,000 in subs(4) was to be read as $75,000.

The result of the trial judge's assessment of the proportion of 20% was thus that the plaintiff could not have recovered any damages for non-economic loss in his common law claim.

Damages for economic loss. S151H was headed "No damages for economic loss unless injury serious". The first three subsections of s151H were the most relevant for present purposes. They were as follows:

"(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.

(a) an injury for which the compensation otherwise payable under s66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 33 per cent of the maximum amount from time to time referred to in s66(1); or (v) an injury for which damages for non-economic loss of not less than $60,000 are to be awarded in accordance with this Division (whether or not compensation is payable under s66).

(3) If the injury concerned was received before 4 pm on 30 June 1989 -

(a) the reference to 33 per cent in subs(2)(a) is to be read as a reference to 60 per cent; and

(b) the reference to $60,000 in subs(2)(b) is to be read as a reference to $100,000. "

The trial judge's findings under s151G for non-economic loss had the result that the plaintiff could not qualify as having received a serious injury within the meaning of either para(a) or para(b) of s151H(2), and thus could not have recovered any damages for economic loss either, in his common law claim.

Consequences of trial Judge's findings on non-economic and economic loss. Since non-economic loss and economic loss between them cover the field of all the heads of damage by reference to which the plaintiff could have sought to quantify his claim, it follows from the judge's conclusions on those two headings, that in his opinion the plaintiff would have failed to recover any damages in his common law proceedings. At one point the judge expressed his conclusion by saying the value of the common law claim was nil. (Here I mean by common law claim, the plaintiffs claim against Kellogg under the modified regime introduced by Act 133/89)

The first defendant's appeal grounds against the trial judge's finding that the common law claim would have failed (grounds 2, 4, 5, 6 and 8).

Various detailed arguments were pressed by counsel for the first defendant against the trial judge's findings about the plaintiff's common law claim. They were stated relatively concisely in the first defendant's written submissions, by reference to grounds of appeal 2, 4, 5, 6 and 8 under the heading "The assessment of damages at common law" and explained in detail in oral argument.

I have considered these different arguments and will mention them briefly a little later, but I do not think that they can prevail against the view I have formed that the trial judge had reasonable grounds for the conclusions he reached about non-economic and economic loss and that there is no basis for this court to interfere with those conclusions.

I do not think it necessary to go into detail in elaborating my own reasons for what I have just said. It seems to me that the trial judge acted on a factual basis which he was entitled to use and that his opinions about proportions were well inside a range within which an assessing judge could reasonably operate. I do not

think counsel for the first defendant succeeded in showing any misunderstanding or misuse of the facts or any mistake in reasoning by the trial judge.

The first of the submissions by which counsel for the first defendant sought to undermine the trial judge's findings was that he could not come to his conclusions without the benefit of expert evidence. This submission seems to me to be without substance. A major part of the District Court's Civil Jurisdiction is the deciding of common law claims for personal injury, subject as some categories of those claims have been, and still are, to changing statutory modification of the applicable law. Far from being persuaded that the judge was precluded from reaching his conclusions without the help of expert evidence, I am not at all sure, but need not now decide, whether evidence of the kind that counsel for the first defendant was pressing the court to say was essential, would have been admissible at all. I cannot see any basis for doubting the jurisdictional competence of the trial judge to make the assessments that he did on the basis of the evidence that was before him.

The other grounds of appeal directed to this aspect of the case began with the idea that the trial judge in arriving at his nil valuation of the common law claim either must have calculated or should have calculated what the agreed settlement figure of $150,000 was composed of, and in doing so must necessarily have calculated some matters which, on the evidence before him, he was not in a position to do. One such matter was what the commutation value of his continuing right to receive weekly compensation would be on a commercial basis. Another aspect of the hypothetical dissection would have been a valuation of the plaintiff's s66 and s67 claims if his pursuing them had not been precluded by what his solicitor had done on his behalf. It was claimed that the trial judge needed either expert evidence or more factual evidence of various matters than was before him before he could calculate the value of these items.

For myself, I doubt whether the ingredient in these submissions which insisted that there was no evidence (either expert or otherwise) on which the trial judge could do the supposed calculations is sustainable. However, I need not decide that, because, in my view, even if the calculating and evidentiary parts of the argument were correct, I do not think the argument can overcome the strength of the judge's positive findings leading to his two assessments, one in respect of s66 and the other s67. Once it is accepted that those findings are correct, there is no need to consider the steps to which the calculating and evidentiary parts of the argument were directed.

It therefore seems to me that the first defendant's criticism of the first major step in the trial judge's reasoning fails.

The trial Judge's valuation of the s66 and s67 claims for permanent loss compensation.

The first defendant's grounds of appeal. The first defendant's criticisms of the way the trial judge dealt with this aspect of the case were made by reference to grounds of appeal 1, 1A, 9, 10 and 11. Those grounds were as follows:

"1. His Honour erred in law in finding that there was evidence upon which he could:

(a) Assess the value of the Respondent's claim at common law;

(b) Assess the value of the Respondent's claim at workers compensation;

(c) Assess the notional date upon which the Respondent may have been able to obtain a judgment at workers compensation;

(d) Assess the value of the settlement at common law in respect of the Respondent's workers compensation entitlements;

1A. That his Honour erred in law in holding that he could make-findings as to:

(i) the notional date of the workers compensation hearing;

(ii) the value of the Respondent's compensation claim without evidence of an expert nature to assist him;

[The underlining [italics] indicates amendments for which leave was granted at the commencement of the hearing of the appeal. The last nine words of para(ii) were intended to apply to para(i) as well.]

9. That His Honour erred in law in finding that the Respondent would receive a continuing award of compensation to age 66.

10. That His Honour erred in law in finding that there was evidence upon which he could assess the value of the Respondent's entitlement to future weekly payments of compensation.

11. That His Honour erred in law in failing to consider the Respondent's potential future earnings in assessing the value of his rights to future compensation payments."

I will deal with the first defendant's arguments supporting these grounds by setting out the written submissions, commenting on them as I go.

Although the written submissions were explained to the court at some length in the oral argument I think the written summary sufficiently states their substance for the purpose of my expressing my views on the relevant aspects of the first defendant's case in the appeal.

"Grounds 1, 1A, 9, 10 and 11 - The assessment of the value of the Respondent's entitlement to workers compensation:

(a) The Respondent sought to establish that his rights to compensation were affected by the election to proceed at common law upon which he was advised by the Appellant. He was advised to pursue the claim at common law rather than to claim weekly benefits and lump sum payments under s66 and s67 of the Workers Compensation Act 1987 (the Act) and that by taking this election he had lost monies in the process;"

Although this could be expressed more precisely, broadly speaking it represents what was common ground between the first defendant and the plaintiff in the appeal.

"(b) In order to establish the loss the Respondent was required to show that the value of his workers compensation payments was greater than the value of his potential right to common law damages and greater than the settlement that occurred at common law;"

I see somewhat differently what the first defendant is seeking to say here. I can make my view plain by restating the paragraph as follows:

"Tn order to establish the loss, the plaintiff bore the onus of putting the material before the trial judge upon which the trial judge could assess that the sum of the amounts of compensation the worker would have received under s66 and s67 was greater than the amount the plaintiff would have recovered pursuant to his common law claim."

I do not think that the plaintiff had to show that the sum of the likely s66 and s67 amounts was greater than the settlement figure.

"(c) To establish the value of the workers compensation rights it would have been necessary to establish the potential value of those rights by the calling of evidence. This the Respondent failed to do and indeed refused to do in exchange of correspondence with the Appellant's Solicitors (AB63J-L). The Respondent bore the onus in this regard and he failed to discharge the onus (see Harris Wheeler v Bodewes, Unreported Court of Appeal 1.10.97 and 7.11.97);

(d) His Honour having indicated that he had little knowledge of workers compensation and the Act (AB141K-M) was required to:

(ii) assess the prospect of ascertaining the benefit;

(iv) assess the prospect of obtaining such benefit;

(v) assess the value of continuing workers compensation weekly payments;

(vi) assess the value of the discount at workers compensation for vicissitudes;

(vii) assess the value of the payment of lump sum compensation under the Act;

(e) All of the above required the Judge to have expert evidence and none was forthcoming and without such evidence it is submitted that the Plaintiff could not succeed in his claim for damages;"

What is meant in para(c) by the statement that the plaintiff failed to call evidence is shown by para(d) and para(e) as being that the plaintiff failed to call expert evidence about the matters mentioned in para(d). There was ample evidence from the plaintiff of the facts concerning his injuries and their effect upon him and also, by medical reports, of the expert medical opinion about his case. These were the primary materials a worker would need to put before the Compensation Court in support of claims under s66 and s67. The first defendant's submission was directed primarily to what was said to be the absence of essential expert evidence to help the trial judge assess the figures the Compensation Court would have awarded, and secondarily to the lack of evidence generally justifying the figures the trial judge arrived at. The authority principally relied on, Williams v Bodewes (the relevant reasons in which were delivered by this court (Mason P, Cole and Stein JJA) on 1 October 1997, unreported) in my opinion clearly supports the proposition I stated when dealing with the trial judge's assessment of the plaintiff's likely damages at common law had that case proceeded to reasons and judgment, namely the proposition that the trial judge in the present case did not need expert evidence as a prerequisite to his being able to form an opinion about the likely figure: see Cole JA at 4-6 of the print of his reasons and Stein JA at 4-5 of the print of his reasons.

Williams v Bodewes is not so clear about the evidentiary position concerning the assessment of what the Compensation Court would be likely to have awarded at particular dates pursuant to claims under the relevant workers compensation legislation. It does however seem to me to be quite clear that Williams v Bodewes did not establish any general rule about the necessity of expert evidence for the making of such assessments by a judge in another jurisdiction. What had to be assessed in the case was the amount a worker would have received if he had obtained approval of an agreement between himself and the employer for redemption under the 1926 Workers Compensation Act of all his workers compensation rights. (The equivalent procedure under the 1987 Act in which it is called commutation, is not exactly the same.) Williams v Bodewes certainly stands as authority for the proposition that the onus is upon the employer to establish the relevant figure. It also fairly clearly assumes that in some circumstances expert evidence would be required for the establishment of the

figure, although a decision to that effect was not necessary in the case, because in view of the way in which the case had proceeded (the employer had called no evidence on the point) the court held that the trial judge had been justified in arriving at the figure which he did arrive at, without the benefit of expert evidence. To the extent that Williams v Bodewes furnishes guidance on evidence it is limited to the topic of valuation of commutation rights for commercial and practical purposes and is not directed to the quite different subject of assessing the value of claims under s66 and s67.

In any event, for the reasons I have given earlier and also will state in a little more detail later, the present case does not seem to me to be one in which there was any need for the trial judge to arrive at any figure as the value of the plaintiff's commutation rights at the time of settlement of his common law proceedings.

Returning to the sub paragraphs of para(d) of the written submissions above set out, my opinion is that the trial judge needed to assess items (i), (ii), (iv) and (vii) but not (v), (vi) and (viii).

In the Compensation Court; for an award under s66 to be made, the court needed first to see whether a worker had suffered the loss of a thing mentioned in the Table as the result of an injury. If the court answered that inquiry m favour

of the worker, the court then necessarily knew the maximum percentage figure which was the ceiling for the amount to be awarded by the court. The court also knew that the ceiling figure was payable only in a most extreme case. If the court found the case was a most extreme one then the court knew the exact amount to be awarded. If the court thought the case was less severe than a most extreme case the percentage payable had to be reasonably proportionate to the maximum percentage having regard to the severity of the matter (Note (a) to the Table as at 11 March 1991).

These are the same steps the trial judge in the present case had to take in arriving at his s66 amount. He was bound to arrive at a figure in exercising the jurisdiction he had to exercise as a District Court judge. I see nothing in the steps he had to take which justified expert evidence being given, let alone being regarded as a condition precedent to his ability to exercise his jurisdiction. There is nothing particularly difficult in the steps as I have stated them. They require whichever court has to consider them to make findings, make value judgements and make calculations of a kind that all judicial officers, in varying contexts, have to do as part of their ordinary work.

In saying this I am not saying that arriving at a decision concerning whether an amount should be awarded under s66 and if so how much it should be is always easy. There have been difficulties of construction of the section, and of other provisions in the Division 4 of Pt3 of the 1987 Act in which it appears. Interpretation of what were at one stage called "Notes" to the Table following s73 led to a number of reported decisions and amendment of the provisions from time to time. Difficulties of this kind in interpretation of the relevant statutory provisions do not seem to me to be appropriate matters for expert, or any, evidence. If a difficulty of construction arises, a judge having to decide it, in any jurisdiction, may have the benefit of an authoritative decision on the point, may have to consider conflicting decisions on the point, may have to have recourse to nothing more than what are conventionally regarded as the rules of interpretation; whatever method a judge finds appropriate, I do not see that the interpretative task will differ whether it is being carried out in the Compensation Court or the District Court. There may be relevant unreported decisions known to

practitioners in the Compensation Court. They can be brought to the attention of the trial judge in the District Court. There may be a received opinion among practitioners in the Compensation Court. That opinion can be put to the District Court in the form of a submission, and considered on its merits. The idea of expert evidence on any of these matters seems to me to be quite foreign to the way in which municipal judges decide cases on municipal law. The factors which make expert evidence of what the law is in jurisdictions outside Australia receivable in courts in New South Wales do not in my opinion apply as between the Compensation Court in New South Wales and the New South Wales District Courts.

The same reasoning seems to me to apply to item (ii), and with some obvious adjustments, to items (iii) and (iv).

Ihave previously dealt with the irrelevance, in the present case, of item (v). As to item (vi) it does not seem to me that a discount for "vicissitudes" is appropriate as a separate matter for consideration in arriving at an amount to be awarded under either s66 or s67. Both sections require the awarding of either the whole or a proportion of a fixed maximum amount. When the amount is to be a proportion of the maximum amount the proportion is to be fixed having regard in a s66 case to "the severity of the matter" and in a s67 case to "the degree and duration of pain and suffering and the severity of the loss or losses". The judge's assessment of the proportion, having regard to what the judge is bound to have regard to may possibly justify the taking into account of "vicissitudes" in arriving at the proportion. Once a proportion is arrived at however I do not see any basis for reducing it by reference to "vicissitude?'. The practice of taking "vicissitudes" into account grew up in damages cases where courts, limited in the amount that they might award by nothing other than the facts of the cases themselves in the circumstances of the day, found the discounting of figures reached on an assumption of absolute regularity as to the future a plaintiff would have enjoyed if uninjured, to be an expedient way of adjusting those figures in order to reach what were thought to be more realistic results. Such considerations do not seem to me to apply in the closed system of s66 and s67 with its fixed maximum figure by reference to which proportions of it are to be fixed in order to reach a dollar result.

As to item (vii), the trial judge had before him, in the shape of the chronology of the two sets of workers compensation proceedings the plaintiff had set on foot, some evidence of what happened about hearing dates in the Compensation Court. In my view this evidence was sufficient for him to reach the conclusions which he did. This item does not seem to me to raise any question of expert evidence. The periods between dates of filing, dates of readiness for hearing, and hearing in the Compensation Court are matters of fact, of which factual evidence could be put before the court. The evidence the trial judge in the present case was left with was rather scanty, but it was some evidence, and if either party had thought a better result could have been achieved by putting further evidence before the court, then it was open for that to be done. As the matter was left by the parties at the close of their cases. the judge had some evidence upon which he could come to a finding, and I do not see how either party can complain about the result.

Item (viii) refers either to a s66 lump sum or a commutation payment. Whichever it is, I have already dealt with it.

"(f) His Honour was also required to consider the effect of the common law settlement of $150,000.00. The Respondent called no evidence to show how this sum was calculated and why it was agreed to. The only evidence was that of the

Respondent who said he obtained the sum of $66,000.00 from the settlement and that he preferred to take a lump sum rather than remain on $200.00 per week that he had been awarded in the Compensation Court (AB124H-P). It was necessary for His Honour to decide the value of the Respondent's entitlement to workers compensation in a lump sum format and to compare that to the settlement of $150,000.00. It is submitted that without expert evidence, this was an impossible task It was made harder by the reason of the failure of the Respondent to show how the settlement was made up, particularly in respect of the amount for costs. It would have been further necessary for His Honour to consider the effects of s51 of the Act dealing with commutation given that it may not have been possible to achieve a lump sum settlement at workers compensation at all and the Respondent's only recourse may have been to common law."

Although I have already dealt with the main elements of this submission, I will here go into a little more detail. The first sentence of the submission as it appears above was based on the idea that some part of the settlement figure may have been arrived at between the parties on the basis that the plaintiff could succeed in getting judgment at common law, that within the amount awarded by any such judgment there would be included for example, an element for pain and suffering, and if that had happened, then for the plaintiff to recover damages from the first defendant on the basis of not having obtained the award of an amount under s67, would involve an element of double compensation.

I do not think there was any room for such considerations once the trial judge reached his conclusion that the plaintiff could not have obtained judgment at common law if his modified common law claim had been contested to judgment. At that point, in my opinion, what may have led the parties to the common law action to agree to the settlement figure lost any significance for the present case.

One particular situation seems to me to be very clear. On the probabilities, I would not consider it at all likely that the ideas of the opposing parties concerning the elements of the $150,000 coincided. What each of them separately thought about the elements seems to me not to matter on any view.

If they were in agreement on the elements (which seems to me to be unlikely) it still would not matter once in the negligence action against the first defendant the court decided that the common law proceedings were worthless to the plaintiff. At that stage I doubt whether there was any point at all in trying to understand what the parties may have thought made up the $150,000. The only relevance of such an exploration would be if the first defendant had material upon which it could have been argued that there must have been some figure going to make up the $150,000 which was directly attributable to some head of common law damages. The trial judge's nil value conclusion would then necessarily be wrong. But, in my opinion there is no such material, and the argument cannot be made. On the contrary, once the position is reached that I have reached, that the finding by the District Court judge about the amounts recoverable under the modified common law damages system were soundly based, then the possibility that any part of the $150,000 was referable to any head of the damages the plaintiff might have recovered at common law is excluded. Further, the only explanation for the $150,000 on the hypothesis necessary in light of the trial judge's finding, is that $150,000 was the amount the insurance company was prepared to pay to remove the plaintiffs workers compensation claims and entitlements from its books forever; why the plaintiff wanted the amount and what happened to it after it was agreed on and paid are all equally irrelevant to

the questions of the amounts likely to have been awarded by the Compensation Court had the plaintiff been able to present his claims under s66 and s67 to that court.

In the result, I do not think that any of the arguments put to the court by the first defendant based upon grounds 1, 1A, 9, 10 and 11 should be upheld.

Other arguments of the first defendant against the damages awarded in the District Court.

Some of the submissions directed at the assessment of the common law damages under grounds 2, 4, 5, 6 and 8 were also relevant to the amounts arrived at by the District Court judge as his assessment of what the plaintiff would have obtained under s66 and s67 but for the first defendant's negligent advice. Further submissions also directed at those amounts were made pursuant to grounds 3 and 7.

These arguments centred on two matters. One was that, as the first defendant asserted, there were inconsistencies between the methods used by the trial judge for assessing on the one hand the amounts he arrived at under s151G and s151H and on the other hand s66 and s67. This argument raises questions of fact which need to be considered in relation to the similar but not identical subject matters of the workers compensation provisions and the modified common law provisions.

I do not think it useful to delve into the factual matters to which counsel for the first defendant drew the court's attention. Having considered them, and bearing in mind the differences between the workers compensation provisions (s66 and s67) and the modified common law provisions (s151G and s151H) I do not see that the trial judge made any material error of the kind asserted for the first defendant.

The other matter is that the trial judge took the date at which the Plaintiff's s66 and s67 claims would have been heard in the circumstances of the case, but for the negligently caused election, as being about 28 March 1992 (AB337) and worked out his assessment of what the awards would have been on that footing, but later referred to 1 September 1994 as being the date he should take (AB346).

For the reasons given by the trial judge I think he was right in taking a date about 28 March 1992 as being the relevant time for the assessment of the s66 and s67 amounts. It is clear that that is the date which he took for his assessment of those amounts. So far as those assessments are concerned the later reference to the later date had no practical consequence.

Nor do I think that later date has any practical consequence so far as the plaintiff's common law proceedings against his employer were concerned. On the trial judge's findings, those proceedings were going to fail on whatever date they were heard. Threshold changes to amounts applicable to claims subject to s151G and s157H have occurred from time to time since the modified common law damages scheme introduced by Act 133/89 commenced on | February 1990. However, so far as I can see, at no time after that date would the changes in the threshold figures have brought about a different result from that arrived at by the trial judge, upon application of his primary findings and evaluations.

In my opinion, the first defendant has failed to make good any of the arguments under this final grouping also.

Conclusion on first defendant's appeal. In my opinion the first defendant's appeal should be dismissed with costs.

The plaintiff raised two points in his cross-appeal. One concerned the mechanical matter of the calculation of the s66 and s67 assessments. It was submitted that on the judge's own figures he should have arrived at slightly different totals from those given in his reasons, $16,789 and $6,995.

The second matter was that in respect of both amounts he made a discount of 15%. In regard to the s66 assessment, he said that he assessed the plaintiff's prospects of recovering such benefit in the Compensation Court at 85% and in regard to the s67 assessment he said he discounted it by 15% for the prospects of recovering such benefit.

It seems to me relatively clear that in each case he was giving some small weight to the opinions of two doctors who had examined the plaintiff on behalf of the first defendant and were each of the opinion there was no continual disability caused by the accident or at all.

The weight of the medical evidence was heavily against the opinions of the two doctors the trial judge referred to, but I do not think he can be said to have been wrong to have given some weight to the possibility created by their reports that the plaintiff might fail altogether. The 15% reduction of the assessments was a significant but by no means major recognition of this possibility. I do not think this court would be justified in interfering with the trial judge's view.

This leaves the question of the accurate calculation of the s66 and a67 assessments. I am not clear that the plaintiff has shown that errors are involved. In any event the increases he claims are not particularly large.

The opinion I have reached is based on the following. Although the trial judge mentioned a s66 figure of $16,789 in one part of his reasons, it seems clear that the figure he actually arrived at and worked on was that stated at the end of his reasons, $18,870. In regard to the plaintiff's back, the trial judge said the range of likely assessment was 30% to 35%, and in regard to his leg, 10%. A calculation of 85% of a 32.5% permanent impairment of the back and of 85% of a 10% loss of a leg at or above the knee, in each case at November 1987, produces a figure of approximately $18,888.

The trial judge may or may not have reached his figure of $18,870 by the foregoing method, but the calculation done by that method is sufficient to demonstrate that the figure arrived at by the trial judge represents with at least reasonable approximation the decision he intended to make, based as I have earlier indicated on what were in my opinion adequate premises.

In these circumstances I do not think that further investigation of this aspect of the cross-appeal is warranted. That is, stating it differently, there does not seem to me to be any sufficient reason for thinking that, given the trial judge's assessment of the case, he made any error of any significance in arriving at his figure of $18,870. Further, on his basic figures his interest calculations appear to be correct.

In regard to interest rates, there was an argument raised by the first defendant in the appeal questioning the appropriateness of those used by the trial judge. For the plaintiff it was contended that at the hearing before the trial judge it was more or less taken for granted that the Jamberoo Schedule should be used. It was pointed out for the first defendant that this schedule did not come into operation until some time after March 1992. Assuming, without deciding, in the first defendant's favour that it was not common ground at the trial that the Jamberoo Schedule should be used, nevertheless it seem to me appropriate that it should be, notwithstanding its having been promulgated some time after March 1992. It was

accepted by both counsel in this court that (a) before the promulgation of the Schedule, different judges in the Compensation Court had quite widely varying views about what interest rates were appropriate and (b) the Schedule was introduced as being in the nature of a Practice Note by which the Compensation Court judges might guide themselves to produce greater uniformity in their decisions. On this footing it seems to me that it was appropriate for the District Court judge in 1996 to regard the rates set out in the Schedule as representing the rates which it would have been reasonable to use in March 1992.

In regard to the cross-appeal therefore, my opinion is that it should be dismissed with costs.

In my opinion the appeal should be dismissed with costs and the cross-appeal should be dismissed with costs.

Stein JA I agree with the reasons of Priestley JA and with the orders he proposes.

1. Appeal dismissed with costs.
2. Cross-appeal dismissed with costs.

Counsel for the appellant: D G Nock Solicitors for the appellant: Colin Biggers & Paisley Counsel for the respondent: R Goodridge