Darlington v Clarry Anderson Sheet Metal Pty Limited & Ors

Australian Specialised Meat Products Pty Limited v Turner (1995) 11 NSW CCR 614 CASES CITED : Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163 Fobco Pty Ltd v Harvey (1996) 14 NSW CCR 98

James Earl Darlington PARTIES : Clarry Anderson Sheet Metal Pty Limited Medical Appeals Panel of the Workers Compensation Commission of New South Wales Registrar of the Workers Compensation Commission of New South Wales

COUNSEL : Mr S. Campbell SC / Mr P.J.Menary (Pl) Mr C. Jackson (1st Def)

SOLICITORS : W G McNally & Co Solicitors (Pl) Hicksons Lawyers (1st Def)

LOWER COURT JURISDICTION : Workers Compensation Commission

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30085/06 James Earl Darlington v Clarry Anderson Sheet Metal Pty Limited & Ors

JUDGMENT 1 HIS HONOUR: On 20 September 2001, the plaintiff suffered a workplace injury. He was then employed by the first defendant as a third year apprentice sheet metal worker. His injury has been described as follows:- "Suffered a total amputation of the little finger and a sub-total amputation of the adjacent ring finger. He also had a deep penetrating cut to the middle finger and he did suffer a compound fracture and even bone loss in that left middle finger. In the index finger he had a penetrating cut across the pulp tissues of the tip." 2 He made a claim pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). Settlement negotiations did not bring about a resolution. A threshold dispute arose. An application to resolve a dispute was made. 3 The medical dispute was referred for assessment. Two separate questions were referred. One concerned an assessment of permanent loss. The other concerned the threshold dispute. 4 It was said by the plaintiff that there were two questions of law before the Approved Medical Specialist:- "(A) Was the Plaintiff entitled to compensation for both loss of use of his hand and severe bodily disfigurement pursuant to s.66 of the 1987 Act in the form it took before the commencement of the 2001 amendments? And (B) Was his cosmetic disability a matter which formed part of the basis of the assessment of whole person impairment for the purpose of s.151G of the 1987 Act."

The Approved Medical Specialist was Dr Fry. He medically examined the plaintiff. He issued his certificate in about July 2005. 5 According to the plaintiff, Dr Fry answered the legal questions adversely to the plaintiff. It was further said that he took the view that to "add in" an allowance for disfigurement would result in "double dipping". 6 Dr Fry assessed the loss of efficient use of the left arm above the elbow at 25% (it was dealt with as an arm injury). He assessed the whole person impairment at 14%. 7 An appeal proceeded. A review de novo took place before the Appeal Panel. The plaintiff was medically examined by one Panel member (Dr Meares). The medical examinations by Dr Fry and Dr Meares resulted in similar findings (inter alia, there were amputations to the little and ring fingers; the little finger had scarring of the distal phalanx, and there was also scarring to the index finger.

8 The Panel confirmed the original medical assessment. It made, inter alia, the following comment (at [27]):- "It is the Panel's view that severe bodily disfigurement in this case where there is amputation cannot be separately assessed as it is taken into account in the assessment for loss of use of the arm. An assessment for severe bodily disfigurement can only be made of an injury which is not or not wholly an injury otherwise compensable under the Table of Disabilities." It also made the following comments (at [28 and 29]):- "The Panel notes that neither party has taken issue with the assessment by the AMS of the loss of use of the left arm at or above the elbow at 25% arising out of injury on 20 September 2001. However, because this is a review de novo the Panel must also review the assessment of impairment of the left arm in respect of the injury on 2) September 2001 (sic). After a review of all the material including the examination findings of the AMS and the findings on re-examination, the Panel considers that upon the correct application of Table of Disabilities and the Workcover Guides a 25% loss of use of the left arm at or above the elbow is derived with no deduction for any pre-existing condition, abnormality or injury. For these reasons the Panel has determined that the Medical Assessment Certificate in relation to the left arm in respect of injury on 20 September 2001 should be confirmed in this regard. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 8 July 2005 given in this matter should be confirmed."

9 The plaintiff now seeks relief pursuant to s69 of the Supreme Court Act 1970 (NSW). He contends that there has been either jurisdictional error or error of law on the face of the record. The issues are said to be as follows:- "(a) In assessing the loss of use of the Plaintiff's left hand, did the Appeal Panel "misdirect itself" by failing to apply the decision of the Court of Appeal in Fobco Pty Ltd v. Harvey (1996) 14 NSW CCR 98 and (b) Did the Appeal Panel fail to give adequate reasons for failing to include an allowance for disfigurement in the whole person impairment assessment? 10 The plaintiff's injury was suffered prior to the commencement of the amendments made in 2001 to the Workers Compensation Act 1987 (NSW) (the 1987 Act). 11 It is common ground that the assessment for permanent loss was to be assessed according to the law as it stood prior to the making of those amendments (by having regard to s66 of the 1987 Act and the Table thereto). "Loss" is defined in s65 to mean, inter alia, "the permanent loss of the use, or of the efficient use, of that thing". 12 The Table makes provision for compensation for "arm injuries" and "disfigurement". What appears in respect of "disfigurement" is as follows:- "Severe body disfigurement (being an injury which is not or is not wholly any injury otherwise compensable under this Table)" 13 It is also common ground that any claim for common law damages in respect of the injury is to be differently dealt with (it falls to be determined under the new regime). The plaintiff has to satisfy the threshold requirement (a degree of permanent impairment of at least 15%). 14 Section 322 of the Act requires that the assessment of the degree of permanent impairment be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made). There are WorkCover Guides for the evaluation of permanent impairment. They contain references to amputation and disfigurement. 15 I now turn to what are regarded by the plaintiff as the issues. One problem that presents itself is the difficulty had in ascertaining how the Appeal Panel dealt with matters in the course of its assessment.

16 The submissions made to the Appeal Panel drew attention to Fobco. What was done in relation to submissions on the case falls within the realm of the uncertain. On one view, they may have been ignored. 17 What was done by the Appeal Panel in relation to the amputations and scarring also has uncertainty. On one view, the amputations may have been taken into account in the assessment for loss of use of the arm and it may be that no account at all was taken in respect of the scarring. 18 Uncertainty also dogs what was done in relation to the assessment of the degree of permanent impairment. Whilst the original medical assessment was confirmed, there is no express mention of this threshold matter. On one view, it may have been simply overlooked. The reasons given by the Appeal Panel do not mention the Guidelines. Whether or not regard was had to them is another unknown.

19 Before proceeding further, it may be helpful to make certain general observations concerning Fobco. The judgments in that case saw the canvassing of two questions. The first question concerns the matter of the recovery of compensation for severe bodyily disfigurement. The second question concerned how recoverable compensation should be given. It was the second question that fell for decision in the case. I shall now proceed with a closer examination of the case

20 In Fobco, the worker suffered injury to his right leg below the knee and that portion of his leg was badly scarred. The disfigurement did not contribute to or affect the extent of the loss of the efficient use of the leg. The Judge of the Compensation Court had awarded, separately, lump sums in respect of the injury to the right leg and the disfigurement. The sole question before the Court of Appeal for decision in Fobco was whether a separate award could be made for disfigurement. By majority, the appeal was dismissed. 21 The Court of Appeal was constituted by Mahoney P, Priestley JA and Beazley JA. Mahoney P (who dissented) took the view that he was bound by an earlier decision of the Court (Australian Specialised Meat Products Pty Limited v Turner (1995) 11 NSW CCR 614, which was constituted by Kirby ACJ, Priestley JA and Rolfe AJA). It was a case in which he considered that the facts were relevantly similar. At pp102-103 the President observed that:- "Questions arose as to the principle to be drawn from the Turner case. It was suggested that, by reason of the differing viewpoints, no principle could be drawn from the decision and that it should be treated merely as one of fact. It is not necessary for me to pursue the question of the extent to which a principle of ratio decidendi can be drawn from the Turner case. Of the Court, at least Kirby A-CJ and Priestley JA were of the opinion that compensation should be awarded in respect of the disfigurement notwithstanding that, upon the facts of the case, the disfigurement was of the thing, the wrist or hand, for which compensation was given under s66. Kirby A-CJ was of the opinion that compensation for the disfigurement could be included appropriately - or at least taken into account - in assessing the compensation for the loss of the thing. Rolfe A-JA was not, I think, opposed to the taking into account of the disfigurement in determining the compensation for the loss of the efficient use of the lower right leg. His opinion that the appeal should be allowed in this regard derived, I think, from considerations which, in his view, would lead to a disposal of the matter without a retrial. Priestley JA dealt with the matter differently. Accordingly, it is, I think, consistent with the views of at least the majority of the Court in Turner to conclude that, in the present case, the disfigurement should, in terms or in effect, sound in compensation under s66." He then proceeded to consider the question of how compensation for the disfigurement should be given. 22 At pp 106-107, Priestley JA observed as follows:- "As I understand Kirby A-CJ's reasons, he was of the view that when an item in the Table referred to a particular part of the body, as for instance the arm or the leg, then lump sum compensation under s66 for severe disfigurement to that part of the body was not available under the disfigurement item but must be taken into account in assessing the degree of loss under the item referring to the particular part of the body; further, such allowance should be made for the disfigurement irrespective of whether the disfigurement played a part in the permanent loss of the use or of the efficient use of that part of the body. This seems to me to be shown by his Honour's references to and quotation of s65(2) at the foot of p620 and the top of p621 of his reasons. On the other hand, I understand Rolfe A-JA to have taken the different view that in cases where there was severe disfigurement to a part of the body referred to in an item in the Table, not only was no compensation available under the disfigurement item but also the disfigurement to that part of the body could only be taken into account in assessing the compensation for the injury to the specified part of the body if the disfigurement caused some loss of use or efficient use of that part of the body. That this was Rolfe A-JA's opinion appears to me to be shown by his adoption and quotation of what Duck J of the Compensation Court said about this point in an unreported decision, Steel v Loftus Pies Pty Ltd, 31 August 1993, set out at p 635 of Rolfe AJA's reasons and also by what Rolfe A-JA said at 637, where he, indicated that the only basis on which severe bodily disfigurement could have been taken into account in Turner was that it "may have caused or contributed to the loss of efficient use of her arm". This difference in the reasoning of Kirby A-CJ and Rolfe A-JA seems to me to be quite basic. On Kirby A-CJ's understanding of the proper construction of the provisions, the worker in the present case would be entitled to some compensation for the disfigurement to his leg whether or not that disfigurement affected its efficient use. (There was no evidence before Manser CCJ that the disfigurement did affect the efficient use of the worker's leg. There was some argument about this in the appeal before us, but in the end it became common ground that there was no evidence that the disfigurement affected the function of the leg.) On Rolfe A-JA's approach, on the basis that there was no evidence that the severe bodily disfigurement caused or contributed to the loss of efficient use of the leg, then the severe bodily disfigurement should not be taken into account under the Table at all.

I therefore think that it is not possible to find in Turner a ratio decidendi on the construction of the relevant provisions concerning severe bodily disfigurement. The reasons of the two judges who joined in making this court's orders were different on a point which could affect cases such as the present. Neither set of reasons can, therefore be regarded as the court's ratio decidendi." 23 I return to the sole question before the Court for decision in Fobco, which was how compensation for the disfigurement should be given (as a separate item under the Table or as a factor in determining what was the percentage to be adopted for the purpose of calculation of the lump sum). It was in relation to that matter that the President observed that "my inclination would be, unrestricted by authority, to deal with the disfigurement as a separate item under the Table". His Honour felt that he was constrained from doing so (because, in his view, both Kirby ACJ and Rolfe AJA in Turner had concluded that such approach was wrong). As a result, he was of the view that the proceedings should be returned to the Compensation Court to reconsider the award in respect of the loss of the use of the right leg, that award to include provision for the disfigurement and the loss caused by it. 24 The majority in Fobco (Priestley JA and Beazley JA) were of the view that Turner should not be followed. The former agreed with what the latter said on the question of construction. The latter, after referring to what had been said by the President, observed as follows [at p108]:- "In my view, such a construction gives proper effect to the words in the brackets following the item in the Table "Severe bodily disfigurement' and also to the meaning of "loss" in s65(1)(b). As Mahoney P points out, the present case is one where the disfigurement is one which has not contributed to the "loss" in relation to the leg, or to use the language of s65, has not contributed to the loss of the efficient use of the lower leg. As such, it is not "wholly an injury otherwise compensable under [the] Table".

At p109, Beazley JA also said:- The learned President has analysed the judgments in Turner. As is apparent from that analysis, it is doubtful whether its ratio decidendi includes the matter at issue here, notwithstanding that there is probably a majority view as to the construction of s65, s66 and the Table which is different from my preferred construction, and, it appears, that of the President. In the circumstances, I am of the opinion that in this case, the Court should not follow the construction given to these provisions by Kirby ACJ and, it seems, endorsed by Rolfe AJA."

25 As can be seen from what was said in Fobco, the relevant law presently stands in a conflicting and somewhat confused state. The approach taken by the Approved Medical Specialist and the Appeal Panel may be in accord with what had been said by Rolfe AJA in Turner. This view would appear to lack support from other judges. What may be done in the future by a Court of Appeal differently constituted may be a matter of surmise. 26 In these circumstances, the Court is hesitant in embracing the task of what may be drawn from these authorities. Doing the best that I can in these difficult circumstances, I shall make certain general observations as to my understanding. 27 At the present time, there would appear to be a majority support for the view that the plaintiff is entitled to have compensation for his disfigurement. On one view, it may be taken into account as a factor in assessing the lump sum. There is authority for the view that where it has not contributed to the loss in relation to the arm, it may be dealt with as a separate item under the Table. 28 In the present case problems arise because of a lack of specific findings. The amputations could be expected to be taken as contributing to the loss in relation to the arm and some allowance may have been made for disfigurement. The scarring may fall into a different category. There does not appear to be any specific finding in relation to "loss". It may be that the proper finding is that the scarring did not contribute to any loss. 29 I shall now briefly address the question of reasons. It is another matter on which there is a lack of unanimity. 30 The Act does contain a provision which requires the giving of reasons (s328(5)). In Campbelltown City Council v Vegan & Ors [2006] NSWCA 284, a view was taken that this provision was intended to apply only to the process before an Approved Medical Specialist and that there was no express statutory obligation to give reasons. It is a case in which the judgments throw up differences of opinion. 31 However, a view was taken that there was an implied obligation. At paragraphs 121 and 122, Basten JA observed as follows:- "121 Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."

32 I am satisfied that the plaintiff is entitled to relief pursuant to s69 of the Supreme Court Act 1970. There has been, inter alia, misdirection (see Craig v South Australia (1995) 184 CLR 163) and if the correct approach had been taken, a different result may have been reached (seeing the plaintiff with an increased entitlement). 33 In these circumstances, it is unnecessary to dwell on the matter of whether or not there has been a sufficient disclosure of reasoning process (assuming that there is an obligation to disclose it). I make that reservation, inter alia, as the Act has been amended and the amendments were not the subject of observation in Vegan. 34 What will suffice varies from case to case. What has been said by the Panel could be described as being economical. I bear in mind that the Appeal Panel did confirm the original medical assessment and that it may be of assistance in ascertaining the reasoning process. Because of, inter alia, what has been earlier said I consider that the Certificate has its shortcomings and that the disclosure of the reasoning process was less than sufficient. 35 The Certificate of the Appeal Panel is set aside. The matter is referred back to the Workers Compensation Commission for determination according to law. The first defendant is to pay the costs of the Summons. The exhibits may be returned.

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