Dunstan v Amcor Ltd [2000] VSCA 9

5. The appellant had, at all material times, been employed by the respondent as a mill-hand at one of the respondent's timber mills in Traralgon. In November of 1996 she had been injured at work when she was struck on the inside of the left foot by one of the prongs of a fork on a timber stacking machine. In the proceedings before the County Court she asked the Court to assess lump sum compensation for partial permanent loss of the use of the foot pursuant to s.98 of the Act and a sum for pain and suffering pursuant to s.98A. Having heard the evidence, his Honour assessed the loss of use of the foot at 20 per cent and, applying the figures in the table, awarded a sum of $13,319.80. No complaint is made in respect of this award. The complaint is now limited to the award of $5,000 for pain and suffering, assessed pursuant to s.98A of the Act.

8. Ss 98 and 98A of the Act operate in tandem. S. 98 allows a claimant to recover a lump sum of compensation for a permanent loss of a body part assessed as a percentage of a statutory figure in accordance with the table set out in the section. Total loss of a foot carries with it an entitlement to a lump sum of a little more than $66,500. In this case, where the loss was assessed as 20 per cent of the total loss of the foot, the claimant was entitled to receive a lump sum of $13,319. That amount was awarded by the judge and, as I have said, no complaint is made in respect of it.

11. S. 98A(1) provides, so far as relevant, that:

"A worker who has suffered an injury mentioned in the Table in s.98 ... is entitled to receive by way of compensation for pain and suffering resulting from the injury ... in addition to any other compensation under this Act, an amount not exceeding $53,880."

15. I note that at the relevant time the maximum amount stipulated for pain and suffering had been adjusted by indexation to $55,040 (s.39 of the Accident Compensation Amendment Act 1996). Each of the parties had addressed his Honour on the basis that the maximum amount allowable for pain and suffering to the appellant was this latter figure. S.98A(2) provides a minimum threshold of compensation payable pursuant to the "s.98 Table", which has to be achieved before there is an entitlement to compensation for pain and suffering pursuant to s.98A. The minimum threshold at the time relevant to the appellant's claim was $11,000. She was, therefore, entitled to receive an award of compensation for pain and suffering pursuant to s.98A.

"The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and severity of the injury or injuries."

22. S.98A(5) defines "pain and suffering" as meaning:

"(a) actual pain; or (b) distress or anxiety; suffered or likely to be suffered by the injured worker, whether resulting from the injury concerned or from any necessary treatment."

26. The exhaustive nature of this definition tends to suggest that the award of compensation for pain and suffering will not comprehend all the factors which are conventionally taken into account by a judge assessing damages at common law, for example, the non-economic component of general damages such as "loss of enjoyment of life.". Nonetheless, the capacity given by the section to award compensation for the "distress or anxiety" suffered or likely to be suffered by the injured worker and resulting from the injury would seem to me to provide scope to the Court to award some compensation on an analogous basis (cf. Alvorac General Engineering Pty Ltd v. Arlotta (1993) 29 N.S.W.L.R. 734 per Mahoney, J.A. At 736).

29. What s.98A requires of the Court, as I see it, is to make an assessment of the pain and suffering which has accrued, and is likely to accrue, to the injured worker as a result of the injury and, recognising that the legislature has provided a statutory maximum of $55,040 which is payable only for those cases described as "most extreme", to then use its judgment and experience to fix a sum within the range available for the pain and suffering assessed in the instant case, which in the court's judgment, is reasonably proportionate to the $55,040 and payable in the "most extreme" group of cases. In performing this task the Court is making a value judgment in much the same way as a judge would assess general damages in a common law claim, but "scaling back" the ultimate result to accommodate the legislative maximum.

32. In this case the judge was assessing compensation payable to a 26 year old married woman who had been injured on 21 November 1996 when the prong of a forklift penetrated her left boot and heel. The injury was described as a "crushing injury" but there were no fractures. She was off work for two weeks in the course of which the wound became infected. She worked until February 1997 when she was married and went on a honeymoon. She resumed her work in late February 1997. She worked full-time but would rest from time to time because the foot was hurting. She continued to work until July of 1998 when she took further time off to have her first child. At the time of the hearing she was still on maternity leave, but intended to resume her employment with the respondent when that leave concluded. As a result of the injury she has lost feeling in the heel of the left foot. She gets pains up the back of the leg, cannot get around in bare feet and is unable to play sports such as netball, tennis and skiing. Apart from taking painkillers for four weeks she has not since been on medication. She agreed that, by the time of the trial in November of 1998, she had a full range of movement in the foot and ankle but was still "numb" over the scar. Her treating surgeon, Mr Kudelka, said that it was his belief that some of the joints in the ankle, particularly the sub-taloid and the mid-tarsal, had been compromised and he expected some discomfort to arise in middle age. He regarded the claimant as having what he described as "an enhanced susceptibility" to arthritic change at that time. Mr Peck, the surgeon who examined her on behalf of the respondent, disagreed with this opinion of Mr Kudelka and said that radiographs were normal, that she had full and painless range of movement and no evidence of joint damage.

35. In his findings the learned judge recited the gist of the evidence as I have related it. He accepted the evidence of the appellant "without reservation". He found that both Kudelka and Peck agreed that her injury had resulted in 20 per cent loss of the use of the left foot which entitled her to lump sum "Table compensation" of the amount which I have stated and thus qualified her for an assessment of compensation for pain and suffering pursuant to s.98A. In assessing such compensation his Honour found that the appellant:

"has experienced pain and suffering ... as a result of her initial injury and its complications. She still suffers from actual pain on a daily basis and no doubt her injury has caused her distress and anxiety."

39. His Honour referred to the submission of the appellant's counsel that he should award "pain and suffering" compensation in the order of 40 to 50 per cent of the maximum, which he described, "namely $53,880", as "a little on the high side".

"I appreciate that the plaintiff has experienced 'pain and suffering' since November of 1996 and that she is likely to continue to experience it for some time to come. In my view, making the best estimate I can and bearing in mind the provisions of s.98A(3), I would award the plaintiff $5,000."

46. Thus the total figure of compensation which his Honour awarded was $18,319.80.

49. The appellant now appeals to this Court against his Honour's judgment and orders pursuant to s.52 of the Act. Sub-section(1) of that section provides:

"Any person who is a party to proceedings before the County Court at which a judgment or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings."

53. It should be noted that, unlike its counterpart in New South Wales, the appeal right granted by the Act is not in the form of a rehearing in which the Court of Appeal is at liberty to review the proceedings which took place before the trial judge. The appeal right is confined to appeals on questions of law raised during the proceedings. The section, in its present form, was introduced by Act 67 of 1992 and was clearly intended by the Parliament to limit the more extensive right of appeal conferred by s.74 of the County Court Act 1958, but only in those proceedings in which exclusive jurisdiction is conferred by the Accident Compensation Act upon the County Court (cf. Victorian WorkCover Authority v. C.E. Heath Underwriting and Insurance (Aust) Pty Ltd [1998] 2 V.R. 427 at 431-433 per Ashley, A.J.A.). In Green v. Victorian WorkCover Authority [1997]1 V.R. 364 at 368-369, Tadgell, J.A. also referred to what he described as "the curious formula " of words pursuant to which s.52(1) conferred the right of appeal on a party and noted that it was legitimate to ask: "what is it that the appeal is to be 'from' or 'against'?"

56. His Honour concluded, after commenting upon the inelegance and lack of consistency of the various sub-sections in s.52, that sub-s.(1) conferred a right of appeal to the Court of Appeal:

"from (or against) a judgment or decision of the County Court on a question of law raised during the proceedings before the County Court and which is involved in the judgment or decision." (page 369).

60. Adopting, as I do, that interpretation of the limited right of appeal conferred by s.52 of the Act, it becomes material to consider what is "a question of law raised during the proceedings before the County Court and is involved in the judgment or decision." That is a matter to which I will return.

63. The Notice of Appeal purports to put before the Court four questions of law said to have been raised during the proceedings. On the hearing of this appeal Mr Goldberg, who appeared for the appellant, informed the Court that he did not propose to advance argument on questions 3 and 4 and would only pursue questions 1 and 2. Those questions are:

"(1) On the facts found by the learned judge did [he] in awarding the appellant $5,000 for pain and suffering pursuant to s.98A(1) of the Act properly apply s.98A(3) of the Act and award an amount of compensation for pain and suffering which was reasonably proportionate to the maximum amount of compensation payable pursuant to s.98A(1), namely $55,040, having regard to the degree and duration of pain and suffering and the severity of the injuries so found? (2) Did the learned judge, on the facts found by [him], err in determining that the maximum amount of compensation payable for pain and suffering under s.98A(1) of the Act was $53,880 and not $55,040 ...?"

67. For my own part I do not regard question (1) as raising a "question of law". Question (1) is couched in the form of a interrogatory to be answered by the Court and, in its essence, dresses up a question of fact as a question of law. To ask whether, on the facts which he had found, the judge - in awarding $5,000 for pain and suffering - had "properly applied s.98A(3) of the Act" is not, as I see it, to isolate and identify a question of law raised during a proceeding. Rather, it is asking the Court to conclude that the judge must have misapplied the principles contained in s.98A(3) of the Act because the amount he awarded for pain and suffering was, on the facts found, manifestly inadequate. This much, as I understood it, was conceded by Mr Goldberg. The question whether a judge's assessment of damages is manifestly inadequate is not a question of law within the meaning of s.52 of the Act. In Public Transport Corporation v. Sartori [1997] 1 V.R. 168, (a case where the Court was considering the meaning of the words "an appeal ... on a question of law" where used in the Appeal Costs Act 1964) Brooking, J.A., with the concurrence of the other members of the Court, said (at 117):

"Complaints of excessive or inadequate damages are only a particular form of the general objection that the verdict was 'against the evidence' ... and the question whether a verdict was against the evidence is one of fact ..."..

71. It is true that these comments were made in the context of an appeal against a jury's verdict, but his Honour, albeit in obiter, expressed a strong opinion that the principle remained true whether the Court of Appeal was considering an award made by a jury or a judge sitting alone (supra at 178). Tadgell, J.A., again with the concurrence of the other members of the Court, confirmed the views expressed in Sartori's case in the later decision of Martin v. The Crimes Compensation Tribunal (1997) 91 A.Crim.R. 301 where his Honour was considering the limits of appeal rights conferred by s.52 of the Administrative Appeals Tribunal Act 1984. His Honour said (at 302):

"In my opinion this Court should take the opportunity now to say clearly that a submission that the Administrative Appeals Tribunal erred in making a manifestly excessive or inadequate award of compensation does not raise a question of law in respect of which an appeal might be brought to the Supreme Court pursuant to s.52 of the Administrative Appeals Tribunal Act."

75. As I have said, at the heart of question (1) is the assertion that the award of $5,000 made by the judge for pain and suffering was manifestly disproportionate to the maximum amount allowable having regard to the facts which his Honour found. That was the way in which the matter was put to this Court by counsel for the appellant. Put in this way, the question is clothed in the guise of a "question of law" by asking whether the judge, in making such an award, "properly applied" s.98A(3). However, in the absence of any specific indication that the judge had misunderstood or misconstrued the task set for him by that sub-section of the Act, that question can only be answered by first considering whether the award was manifestly inadequate. There was no dispute between counsel at the trial as to the manner in which the judge was required to perform the task posed for him by the sub-section and there is nothing in the reasons given by the judge for his award that suggested that he regarded his function as other than that which I have described earlier in these reasons. Indeed, the fact that he rejected the submission of the appellant's trial counsel that he should award a sum approximating 40 to 50 per cent of the maximum permitted by the section is in itself an indication that he was aware that his award was to be reasonably proportionate to the maximum amount which the section would allow to be paid in a most "extreme case". Furthermore, he expressly stated the award that he made of $5,000 was being made "bearing in mind the provisions of s.98A(3)." For these reasons I am not persuaded that question (1) does raise a question which the Court is competent to answer; nor am I persuaded that his Honour failed to properly apply the provisions of the relevant sub-section.

78. In any event, I am not persuaded that the amount which his Honour awarded is, in itself, a demonstration that he misapplied the section. The sum that he awarded was approximately 9-10 per cent of the maximum amount which the section permitted to be awarded in "a most extreme case". It is not to be assumed that the assessment which the judge makes under s.98A of an amount which, in his view, is reasonably proportionate to the maximum allowed by the section is necessarily to be equated to the percentage loss of use of the body part determined under s.98 (cf. Kirby, P. Jones Bros. Bus Co. Pty Ltd v. Baker (1992) 26 N.S.W.L.R. 322 at 335-336). The evidence entitled his Honour to find that the pain and suffering which accrued to the appellant from her injury was largely confined to the period of two weeks during which she was away from work and that, whilst he accepted that she "still suffers from actual pain on a daily basis" and was likely to continue to experience it for some time to come, such pain was confined to a numbness and tingling sensation under the left heel and an occasional "stabbing pain" in that area. The appellant's evidence was that she had recovered a full and relatively painless range of movement in her foot and ankle which did not preclude her from her previous employment and that most of the time that she had lost from work was due to reasons other than the sequelae of her injury. She had received no treatment or medication for two years prior to the hearing. The major dispute between the experts was as to whether the injury had involved the joints of her ankle. His Honour was entitled to find that it had not. But even if it had, the highest the evidence went was that the appellant was at risk of an "enhanced susceptibility" of arthritis in middle age.

81. I am, accordingly, unable to say that, on a view of the evidence open to his Honour, the amount which he awarded pursuant to s.98A was manifestly inadequate or was unreasonably disproportionate to the maximum amount payable in a most extreme case or that, in some other way, his Honour had misapplied the section. The mere fact that, upon a perusal of the transcript, I might have been inclined to have allowed a greater portion of the maximum allowable amount, does not, by itself, demonstrate that the sum which his Honour awarded was manifestly inadequate, nor does it demonstrate that he misapplied the section. The quantification of compensation for pain and suffering under s.98A involves, as Mahoney, J.A. pointed out in the Alvorac General Engineering case (supra at 739), a "value judgment", with which a court of appeal, having regard to the advantages enjoyed by the primary judge in seeing and hearing the witnesses, should be slow to interfere (cf. Mobilio v. Baliotis [1998] 3 V.R. 833, per Brooking, J.A. at pp.836-837).

84. I am also of the opinion that the second question referred to in the Notice of Appeal should be answered against the interests of the appellant. That question asks whether the judge erred "in determining that the maximum amount of compensation payable for pain and suffering under s.58A(1) of the Act was $53,880 and not $55,040."

87. As I previously indicated, there was no dispute between the parties during the hearing that the indexed maximum amount allowable for pain and suffering at the time when the appellant suffered her injury was $55,040. The question in the Notice of Appeal is predicated upon the comment made by his Honour in his reasons for judgment that:

"[counsel for the appellant] Submitted that I could award the plaintiff between 40-50 per cent of the maximum applied by s.98A(1), namely $53,880."

91. In my opinion it would not be correct to conclude, in the context of the case, that in referring to this figure his Honour was consciously and erroneously determining, as a matter of law, that it represented the maximum amount which the section allowed for "pain and suffering" in the instant case.

94. Having regard to the manner in which the hearing was conducted by counsel for both parties in which it had been accepted that the maximum amount as indexed was $55,040, it seems to me that his Honour, in obliquely referring to the figure which he did, was referring to the unindexed figure stipulated in the body of the section. He was not intending to determine as a matter of law that it was the maximum amount which was to govern his decision. In any event, as counsel conceded, the error, if such it be, was immaterial to his Honour's award which was expressed in global terms. Although, no doubt, the maximum amount which the section allows for pain and suffering is a factor relevant to the judge's assessment, the immateriality of the suggested error can be gauged from the fact that the difference between $5,000 expressed as a percentage of $55,040 and $5,000 expressed as a percentage of $53,880 is less than .2 of a per cent. In those circumstances, it would be a futile exercise and productive of unnecessary costs to remit the matter to the County Court.

97. For these reasons the appeal should be dismissed.

112. The formal order of the Court will be that the appeal is dismissed.