Solicitors for appellant: Wallace Wilkinson and Webster

Solicitors for 1st respondent: Levis Stace and Cooper

Solicitors for 2d respondent: Zeeman Kable and Page

Solicitors for 3d respondent: Crisp Hudson and Mann

CRAWFORD J The first respondent in the appeal (there is also a cross-appeal), Mr Morrisson, was at all material times employed by the third respondent, the City of Burnie, as its Civic Centre Manager. In the course of his employment on 15 June 1990 he was assaulted at work by a drunken patron of his employer and suffered two hair-line fractures of the nasal bone, bruising of the left chest and left thigh and soft tissue injury to the neck. He gave notice to his employer of those injuries in compliance with the Workers Compensation Act 1988, ss32(1)(a) and 33(1). He made a claim for compensation with respect to those injuries in compliance with ss32(1)(b) and 34(1). At the time of the assault the employer maintained a policy of insurance with the appellant, FAI, pursuant to s97. The employer admitted liability for the appellant's claim for compensation and he was paid compensation for medical and other services pursuant to Part VI, Division 2. Apart from visiting medical practitioners and taking holidays the applicant did not take any time off work until 11 September 1991. On 30 June 1991 the second respondent, MMI/CMI, became the insurer of the employer pursuant to s97, in the place of FAI.

2. On 11 September 1991 Mr Morrisson became incapacitated for work by reason of a mental disorder known as post-traumatic stress disorder. It was determined by the Workers Compensation Commissioner on 23 December 1992 that Mr Morrisson had been totally incapacitated for work ever since. He made a further claim for compensation, including weekly compensation, and weekly payments were made to him by the employer which were calculated upon the basis of his average weekly earnings over the period of 12 months immediately preceding the assault on 15 June 1990. The Commissioner determined that the mental disorder and incapacity resulted from the assault. Following it "the mental incapacity was like a time-bomb waiting to go off". The trigger for the onset of the incapacity which resulted from the disorder was the fact that Mr Morrisson was required to attend a criminal compensation tribunal hearing and give evidence in support of his claim for damages for assault. Just prior to his appearance before the tribunal he was questioned by the City Manager in circumstances in which he felt his integrity may have been impugned. Being thus emotionally aroused, the experience of being questioned about the assault brought about his "collapse". According to a medical report which was accepted by the Commissioner prior to his "collapse" on 11 September 1991, "the mental mechanism of denial had worked sufficiently well to suppress the manifestation of some but not all of his symptoms" of post-traumatic stress. The claims made by Mr Morrisson to the Commissioner, which have led to this appeal, included the following:

1 A lump sum redemption of the remaining liability of the

employer to make weekly payments, under s89.

2 Lump sum compensation for permanent and incurable of loss

of mental capacity involving inability to work, under s71(1)

Item 6.

3. There was no dispute before the Commissioner that Mr Morrisson was entitled to weekly compensation during the incapacity. By s69(1) he was entitled to be paid for his total incapacity weekly payments equal to his "average weekly earnings" or his "ordinary time rate of pay" whichever was the greater. By s69(2) "average weekly earnings" means his average weekly earnings over the period of 12 months ending at the commencement of the period of incapacity.

4. What was in dispute was the total liability of the employer for weekly compensation. The dispute was primarily between the insurance companies, for which company is liable to indemnify the employer depends on it. By s69(6) "the total liability of an employer in respect of compensation under this section shall not, in any one case, exceed an amount equal to 284 units calculated in accordance with the basic rate applying at the date of occurrence of the injury". If the "date of occurrence of the injury" to Mr Morrisson was 15 June 1990, which was the date of the assault, the limit of liability for weekly payments was $83,808. If the "date of occurrence of the injury" was 11 September 1991, which was the date on which the incapacity commenced, the limit of liability was $88,409. The first insurer, FAI, primarily relied on s3(5) which is in these terms:

"S3(5) For the purposes of this Act, where a worker suffers

an injury that is a disease, that injury shall be deemed to

have occurred -

(a) on the day on which the worker became totally or

partially incapacitated by reason of that injury; or

(b) if a day cannot be ascertained under paragraph (a), on

the day on which a medical practitioner has certified that

the worker was first incapacitated by reason of that

injury."

5. FAI's argument was that Mr Morrisson suffered an injury that was a disease and that by virtue of s3(5)(a) it should be deemed to have occurred on the day on which Mr Morrisson became incapacitated by reason of it. I mention that s3(1), the interpretation section, states that unless the contrary intention appears "injury" includes a disease. The Commissioner rejected FAI's argument and held that the date of occurrence of the injury was 15 June 1990. The Commissioner was of the view that if a disease was a consequence of some traumatic injury at work the basic rate for calculation of entitlement to weekly payments was determined by reference to the date of the injury regardless of the occurrence of the disease resulting from it.

6. The notice of appeal filed by the appellant FAI asks that the determination be set aside on grounds that the Commissioner erred in law in:

"(a) Finding that Section 3(5) of the Workers' Compensation

Act 1988 was not relevant to the circumstances of the case

before him and in failing to apply the provisions of Section

3(5) of the Workers' Compensation Act 1988 so as to

determine the date of the relevant injury to the worker as

being the 11th of September, 1991.

(b) Erred in law in finding that the relevant injury which

was suffered by the worker occurred in June, 1990".

7. Counsel for the appellant, FAI, submitted that the post-traumatic stress disorder was a disease and separate from the injury caused by the assault. It was a result of an assault and not of an injury. An assault, he said, is not an injury. In support of this submission he referred to evidence given before the Commissioner by a psychiatrist, Dr Burges-Watson, who said that a key aspect of the post-traumatic stress disorder was Mr Morrisson's fear of being attacked again. Counsel put to Dr Burges-Watson that threats of revenge made by the assailant to Mr Morrisson were significant in the development of the disorder and Dr Burges-Watson responded by saying that "the event itself is the main precipitating thing", but he agreed that if threats of revenge were made at the time of the assault they would be a major factor. He agreed that "the traumatic circumstances in which the assault occurred, being inflicted by a drunken person, a violent person, who was behaving in an illogical manner, all those factors surrounding the circumstances in which the punch was inflicted, are really the critical factors in relation to the fact that a post-traumatic stress syndrome developed ..... as the causative factor". If Mr Morrisson had simply suffered his physical injuries by falling over at work, a post-traumatic stress disorder would not have been expected to develop. Dr Burges-Watson agreed that "it follows from that it's really the circumstances in which those injuries were inflicted which are the main precipitating cause of the development of the post-traumatic stress disorder". Notwithstanding counsel's attempt to selectively apply Dr Burges-Watson's evidence, it is clear that what the evidence also established was that without the physical injuries (broken nose etc) the mental disease would not have resulted. The disease was the product of the physical injuries and the circumstances of their affliction.

8. A worker is not entitled to compensation under the Act unless his case comes between s25(1):

"25-(1) If in any employment -

(a) a worker suffers an injury, not being a disease, arising

out of and in the course of his employment; or

(b) a worker suffers an injury, which is a disease, arising

out of and in the course of his employment and to which his

employment contributed to a substantial degree,

his employer is, except as is otherwise provided by this

Act, liable to pay compensation in accordance with this

Act -

(c) to the worker; or

(d) if the injury results in the death of the worker, to the

persons who are the worker's dependants at the date of his

death or who would, but for any incapacity due to the

injury, have been his dependants.

9. The worker's case must be proved to come within the subsection before liability in the employer to pay compensation can arise under the Act. If that is proved the worker, or his dependants, may be entitled to payment of particular forms of compensation to be found in later sections, viz, lump sum on death, s67; weekly compensation for incapacity for work, s69; lump sum for a specific residual disability (or maim, as the Commissioner referred to it), s71; reasonable expenses of medical and other services, s75; reasonable expenses of travelling and maintenance, s76.

10. I understood counsel for MMI/CMI to submit that the fact that post-stress disorder is a disease may be ignored because authorities show that its contraction in the circumstances of the case amounted to the suffering of an "injury" in the usually understood sense of that word, without there being any need to pay regard to the statutory inclusion within it of diseases. Examples he cited were Mansfield v Huon Valley Co-Operative Society Ltd an unreported judgment of Burbury CJ dated 11 August 1959, Yates v South Kirkby Collieries Ltd (1910) 2 KB 538 and Eaves v Blaenclydach Colliery Co Ltd (1909) 2 KB 73. A recent example is Miller v Royal Derwent Hospital Board of Management 38/1992. And see Deeble v Nott [1941] HCA 11; (1941) 65 CLR 104 particularly at 114-115 per Williams J. But those authorities cannot assist MMI/CMI's case because of the alteration to the law effected by the 1988 legislation. No longer is the law concerned with personal injuries by accident on the one hand and a restricted list of specified diseases on the other as the sources of foundational liability in employers to pay compensation. It is not necessary, nor is it permitted by the Act, to first endeavour to find a place for what has been suffered within the meaning of "injury" in its narrow sense, that is to say, without giving the word its extended meaning in s3(1) of an injury and a disease. When determining what Mr Moirisson may have suffered within 525(1) the questions to be asked are has he suffered an injury which is not a disease, has he suffered an injury which is a disease or has he suffered no injury at all.

11. Mr Morrisson has suffered a number of physical injuries (two fractures of the nasal bone, bruises to the left chest and left thigh and soft tissue injury to the neck) and at least one mental injury or disease (post-traumatic stress disorder). But it would be wrong to suggest that each of the physical injuries and the disease provides a separate foundation as an injury under s25(1) for liability to pay compensation to the extent that based on each he has a separate and potential claim for weekly payments amounting in total, by reason of s69(6), to 284 units ($83,808 at the time of the assault). If that was so a worker who suffered multiple injuries in one accident at work might be entitled to several hundred thousand dollars in weekly payments. Such a result was never contemplated under the previous legislation and could not have been contemplated upon the making of the current legislation.

12. It is a well understood principle of workers' compensation legislation that the rights and liabilities of the worker and the employer respectively to receive and pay compensation vest immediately at the time of the injury. Ogden Industries Pry Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32 at 42; Kraljevich v Lake View and Star Ltd (1945)70 CLR 647 at 650; Fenton v J C Hutton Pty Ltd (1972) Tas SR 272 (NC), 34/1972 at 2. Section 25(1) requires for the vesting of liability to pay compensation that the "worker suffers an injury". This expression was explained by Underwood J in Electrolytic Zinc Company of Australasia Ltd v Maister [1990] TASSC 29; (1990) Tas R 91 at 98-99:

"The use of the verb 'suffers' in its transitive form has

been used in workers' compensation legislation in this State

since 1947 to identify the time when an employer incurs

liability to pay compensation. As Neasey J observed in

Fenton v J C Hutton Pry Ltd (1972) Tas SR (NC) 11 unrep

34/72 at p2: '(it is a) well understood principle of the

workers' compensation legislation that the rights and

liabilities of the worker and the employer respectively to

receive and to pay compensation were vested at the time of

the injury.'

This decision was followed by Brettingham-Moore J in Riley v

State Fire Commission 75/1984.

It has long been accepted in the field of workers'

compensation, as between employer and employee that, when a

worker suffers a relevant event in the prescribed

circumstances, there is imposed on the employer an immediate

obligation to pay compensation when, and to those persons and

in the amounts which, the Act specifies, in relation to

events which may thereafter occur and

which result from the relevant event. See Ogden Industries

Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32 at p42; Moakes v Blackwell

Colliery Co (1925) 2 KB 64; Kraljevich v Lake View and Star

Ltd (1945)70 CLR 647; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188

at pp202, 203. It may be noted here that the Tasmanian

Parliament used the same verb in the same form for the same

purpose in the Motor Accidents (Liabilities and Compensation)

Act 1973, s23(1).

The adoption in the 1988 Act, s25(1), of a form of words used

in the 1927 Act, well understood and judicially interpreted,

to determine the moment when rights and liabilities between

employer and employee become vested, inescapably leads to the

conclusion that Parliament intended to give those words the

same meaning that has always been given them. There is

nothing in the Act to indicate to the contrary. As was the

case under the 1927 Act, later sections quantify the extent

of a liability incurred as provided in s25(1) and identify

the persons to whom or in respect of whom compensation is to

be paid.

There is nothing in the words of the 1988 Act to justify

construing s25(1) to mean that liability to pay compensation

accrues upon a worker Suffering from' an injury...".

13. Although it may not always be an appropriate term, I find it convenient in this case to adopt the expression of Underwood J of the suffering of an injury within s25(1) as the suffering of "the relevant event" for I find that it best expresses the conclusion I have come to on this part of the case. Underwood J continued at 101:

Whether the injury which grounds liability to pay

compensation is a disease or not, the word 'suffers'

connotes, as it did under the repealed legislation, a

definable point in time when the injury was suffered,

sustained, occurred to, or befell the worker. It is the

occurrence of injury in the circumstances prescribed by

s25(1)(a) or (b) which attracts the liability to pay

compensation. The date the injury was suffered is

significant for other purposes. For example, it determines

the value of the unit used to quantify the extent of

liability pursuant to ss67, 69(6) and 73, (cf 1927 Act, s3(5)

Schl, r1(1)) and it determines the period within which

proceedings to recover damages may be commenced, (cf 5135(1)

1927 Act, s9(7))."

14. As soon as the assault on Mr Morrisson was completed and he had suffered physical injury there was vested in the employer liability to pay compensation under the Act by virtue of s25(1). The conclusion I come to is that the event which vested that liability in the employer and the right to compensation in Mr Morrisson was the suffering of the physical injuries in the course of the assault upon him. Whatever physical or mental injuries subsequently developed from that can only be considered as relevant consequences when later sections of the Act are considered to ascertain what amounts of compensation, if any, must be paid by the employer. By way of example, if in employment a worker suffers multiple fractures of his leg from which he largely recovers but subsequently osteoarthritis develops in the knee as a consequence of those injuries the development of that disease, osteoarthritis, does not found in the worker a new right to compensation under s2S(1). The right to compensation vests at the time of the original injuries and the development of the disease would not have the effect of moving the foundation for the worker's entitlement from par(a) of s25(1), an entitlement based on an injury which is not a disease, to par(b), an entitlement based on an injury which is a disease.

15. These principles were expressed by Walsh JA in Young v University of Sydney (1969)90 WN (Pt 2) (NSW) 71 at 81:

"It has long been accepted in England and here that the

provisions of the relevant legislation relating to workers'

compensation had the effect that, in dealing with claims for

compensation for personal injury, the liability of the

employer, and the right of the injured worker, were to be

treated as having arisen when the injury occurred, whether

there was then an immediate right actually to receive any

payment or this did not crystallize until a later date. In

consequence of this, the general rule was established that it

is the law in force at the date when the injury is suffered

which determines the conditions of entitlement and the amount

payable. For this and other reasons, when the concept of

injury had to be accommodated to the inclusion in it of

occupational diseases, special provisions were devised to

meet the problem of fixing a time at which the injury should

be taken to have happened. These provisions themselves led

to complexities and difficulties, particularly in relation to

boilermaker's deafness, and to the enactment of successive

amendments designed to deal with such difficulties."

"It must be borne in mind that, in order to be compensable,

whether under s 16 or under other provisions of the Act, a

worker must have received an injury arising out of or in the

course of the employment. The consequences of an injury

answering that description may all manifest themselves at

once, or their manifestation may occur, in whole or in part,

at a later time. But each manifestation does not constitute

a new 'injury', except in cases governed by special

provisions enacting that this is so or is to be deemed to be

so."

17. Consistent with these principles is Harris v TSS Pty Ltd 46/1992 in which Underwood J considered the requirement in s32(1) to give "notice of the injury". He held at 5 and 6 that the conditions precedent to entitlement to compensation prescribed by s32 only apply to the injury the occurrence of which creates the liability to pay compensation "in accordance with the provisions of this Act" (s25(1)). Once notice of the injury has been given and a claim for compensation with respect to it has been made there is an entitlement to compensation and the notice need not be given and the claim need not be made again when some consequence of the original injury manifests itself.

18. For these reasons I hold that when 569(1) refers to incapacity for work resulting from an injury suffered by a worker, thereby resulting in a liability in the employer to pay weekly compensation, the reference to injury" is to the original injury which gave rise to the foundational liability to pay compensation under s25(1). For the same reasons I hold that the provision in s69(6) that the total liability of an employer in respect of compensation under the section shall not, in any one case, exceed an amount equal to 284 units calculated in accordance with the basic rate applying at the date of occurrence of the injury refers to the date of occurrence of the original injury within s25(1) and not to the date of the occurrence of a consequential injury. In cases where the original injury consists of a disease, the date of occurrence will, of course, be the date upon which incapacity by reason of the injury commenced in accordance with s3(5). But where the original injury is not a disease the date of its occurrence will be its actual occurrence. The mental disorder followed the suffering of the physical injuries inflicted by Mr Morrisson's assailant. The physical injuries first had to be suffered before the mental disease was suffered as a consequence. The physical injuries suffered in the assault constituted the "injury" for the purposes of s25(1). The date of occurrence of the injury within s69(6) is therefore the date upon which the physical injuries were inflicted in the course of the assault, namely 15 June 1990. The Commissioner was correct when he so determined. The appeal will therefore be dismissed.

19. The Commissioner ordered that Mr Morrisson be paid $22,787.45 pursuant to the Workers Compensation Act 1988, s71. Subsection (1) provides that where a worker suffers an injury specified in the Table set out in the subsection, the amount of compensation payable to him under the Act is, subject to the section, an amount equal to the number of units respectively specified opposite the injury in that Table. The word "injury" clearly has a different meaning than the word "injury" in s25(1). Item 6 in the Table provides that 284 units apply where the injury consists of "total, permanent, and incurable loss of mental capacity involving inability to work". For a case where the relevant loss is permanent and incurable, but not total, the Commissioner is bound to apply s71(2)(b):

"(b) Where in relation to an injury specified in the table

set out in subsection (1), other than an injury specified in

items 7,8, 9, 13, 18, or 28 of that table, the loss suffered

by a worker consists of the loss of a proportion of, or a

proportion of the use of the member, part, or faculty

specified, the compensation payable in respect of such

proportionate loss shall be such proportion of the amount

equal to the number of units specified opposite the injury in

that table as is equal to the proportionate loss suffered by

the worker;"

20. The Commissioner's findings of fact which were relevant to this issue included that Mr Morrisson had been totally incapacitated for work since his "collapse" on 11 September 1991 (the order was made on 23 December 1992). In the context of considering Mr Morrisson's application for a lump sum in redemption of weekly payments the Commissioner found, after noting that if weekly payments continued at the rate to which Mr Morrisson was entitled his entitlement to weekly payments would be exhausted in 50.6 weeks as at 6 December 1992, that "the prospect of a return to work in the foreseeable future is small indeed". When the Commissioner turned to Mr Morrisson's entitlement under s71 he made the following findings of fact:

"I turn to the worker's claim under Section 71 of the Act for

loss of mental capacity (to use a convenient abbreviation).

The basic rate for the purposes of Section 71 of the Act must

be taken as $320.95 which has been the basic rate applicable

since the 1st January 1992. It is not until this year that

it has been possible to make an assessment of the worker's

loss of mental capacity for the purposes of Section 71 of the

Act.

The maximum entitlement is therefore 320.95 x 284 which

equals $91,149.80.

Obviously the worker is not entitled to the full amount in

this case. What his psychiatrist chose to call his cognitive

faculties are relatively unimpaired. He is able to reason

properly and his memory is relatively unimpaired though his

memory and ability to concentrate are impaired to some

degree. However he is emotionally impaired to a substantial

degree. There is some prospect of mental improvement in the

future. There is some prospect of his being able to perform

some work such as running a shop with the support of someone

with whom he feels secure. But there is no real prospect of

his being able to resume full time employment at any trme in

the future. I was much impressed with the evidence his wife

gave. I accept her as a truthful and careful witness. The

worker has suffered a permanent and incurable loss of mental

capacity. He will never return to anything like his old

position and work.

I assess the permanent loss of mental capacity as 25 per

cent. As I have stated before, in my opinion I have a

discretion to refrain from ordering payment of a lump sum

under Section 71 until and unless I am satisfied that the

maim or disability can be identified as permanent. In this

case I consider I am able to reach that conclusion."

21. The Commissioner then ordered that Mr Morrisson be paid $22,787.45 being 25 per cent of $91,149.80 which he said was the maximum entitlement under Item 6, meaning that if there was total, permanent and incurable loss of mental capacity involving inability to work $91,149.80 would be the correct amount of compensation based on $320.95 x 284, where $320.95 was the applicable "unit" under s65. Counsel for MMI/CMI submitted that the Commissioner erred in that he should have used $295.10 as the unit applicable to an injury which occurred on 15 June 1990 and not $320.95 which was the unit applicable to an injury occurring after 1 January 1991. But no error in that regard was made a ground of appeal. If there was such an error it could only be corrected if the order is set aside and the amount to be paid is reassessed.

22. Mr Morrisson has appealed from the Commissioner's order on two grounds:

"(b) that he failed to award compensation pursuant to Section

71 and Section 72 of the Act, which was proportionate to the

extent of the First Named Respondent's total, permanent and

incurable loss of mental capacity involving an inability to

work by assessing the entitlement under those Sections by

reference only to the extent to which he found the First

Named Respondent had suffered a permanent loss of mental

capacity of 25 per cent.

(c) that having found as a fact that there was 'no real

prospect of (the First Named Respondent) being able to resume

full-time employment at any time in the future' by reason of

a permanent and incurable loss of mental capacity, he failed

to find the First Named Respondent entitled to compensation

equivalent to 284 units as prescribed by item 6 to the Table

contained in Section 71 of the Act."

23. I am satisfied that the Commissioner made an error in point of law by coming to an ultimate determination of fact which was not reasonably open to him on the evidence. I tend to the view that it arose from a misdirection of law involving an erroneous interpretation of Item 6 and the proper application of s71(2)(b) to it. It seems likely that what the Commissioner did was find that Mr Morrisson had a permanent and incurable loss of mental incapacity which involved inability to work and then determined the extent of Mr Morrisson's loss of men]al capacity without regard to the extent to which that loss involved inability to work. Brugnoni v Hydro Electric Commission [1957] HCA 59; (1957) 97 CLR 548 and Accident Compensation Commission v Hawkins [1992] VicRp 39; (1992) 1 VR 589 make it clear that such an approach is erroneous. In Brugnoni the Kigh Court considered rr4(1) Item 6 and 5(1) in the first schedule to the Workers' Compensation Act 1927. In substantially similar terms to Item 6 in the current legislation the item provided for lump sum compensation for "total and incurable loss of mental powers involving inability to work". Rule 5(1) provided that where the injury consisted of a lesser but substantial degree of any injury under r4(1) the judge might award as compensation such amount as, having regard to the provisions of r4, appeared to be just and proportionate to the degree of injury sustained by the worker. At 557 Williams J, with whom Dixon in, Kitto and Taylor 11 agreed, said that the loss of mental powers must be such as to involve an inability to do the sort of work the worker was capable of doing at the date of the accident and that loss must be incurable. Total and incurable loss of mental powers would probably involve complete inability to do such work while partial loss of mental powers incurable to the extent of that loss would probably involve at least partial inability to do such work. When considering a similar provision in Accident Compensation Commission v Hawkins (supra) Murphy J, with whom McGarvie J agreed, said at 591 that "the expression 'involving inability to work' qualifies the words 'loss of mental powers' and means that the loss of mental powers must be of that quality and have that characteristic, namely of causing inability to work as before because of the loss of mental powers". At 594 Murphy J said that for there to be a total loss of mental powers involving incapacity to work the worker would be totally unable to work but he would not be required to prove that he had suffered a total and incurable loss of all mental powers. "To do that he would need to be a vegetable, and, if that were so, I do not think that the words 'involving inability to work' would have any meaning. They would be mere surplusage." Although the legislation I am considering has slightly different wording I intend to apply these principles.

24. The Commissioner expressed himself as assessing "the permanent loss of mental capacity as 25 per cent." On its face that statement suggests an error for the assessment was not expressed as a percentage loss of mental capacity involving inability to work. However the Commissioner had earlier referred to Mr Morrisson's claim under 571 as a claim "for loss of mental capacity (to use a convenient abbreviation)" and patent error cannot therefore be found simply from what the Commissioner stated. It is therefore necessary to consider the transcript of what occurred before the Commissioner and particularly the evidence.

25. A consideration of the evidence leads me to conclude that while Mr Morrisson did not have anything approaching total permanent and incurable loss of mental capacity without regard to the extent to which it affected his earning capacity, his loss of mental capacity involving inability to work was close to 100 per cent. There was admitted into evidence a report from Dr Paul Brown, a Victorian psychiatrist who was treating Mr Morrisson, who expressed his conclusion that:

"Mr Morrison (sic) is severely incapacitated with prominent

mood and sleep disorder and episodic suicidal thoughts. He

is virtually a recluse, only leaving home to attend doctors

or the courts. It is my carefully considered opinion that Mr

Morrison's (sic) psychiatric condition has the poorest

prognosis. I believe he will always remain incapacitated and

that he will never work again."

26. The conclusions of Dr Ian Burges-Watson, a psychiatrist, deserve more weight because he gave evidence. He was the only expert witness to do so. He was of the opinion that Mr Morrisson would not recover sufficiently to enable him to undertake any formal employment, in the sense of being employed by other people. Even with time and treatment he would not be capable of coping with the ordinary stresses and strains of working life at any time in the future. The only chance Dr Burges-Watson could foresee of him earning income from work again was expressed in these terms:

"I suppose what I could envisage as a possibility at some

stage in the future if finances and the economic situation

allows, is that Mr Morrisson might be capable of running a

small shop or something with his wife, some situation in

which he is doing something in which he is supported by

somebody he knows cares for him and he can trust."

27. Dr Burges-Watson was asked to quantify the permanent and incurable loss of mental capacity and said that Mr Morrisson was more than 85 per cent incapacitated at the present time and was unlikely to reach a level of less than 85 per cent incapacitated as far as work was concerned. But if the element of inability to work was removed from his assessment of the mental incapacity the figures were better and it was possible that with treatment his mental incapacity, without regard to that element, might be reduced from about 75 per cent to 25 per cent. I believe that either this part of the evidence of Dr Burges-Watson was misunderstood by the Commissioner or he misdirected himself as to the law, involving a misunderstanding of the meaning of Item 6 and the application to it of s71(2)(b). Dr Burges-Watson explained that Mr Morrisson's intellectual capacity was relatively unimpaired but his ability to control his emotions was very much impaired. With treatment cognitive ability might improve to 95 per cent or 100 per cent of what it had been before but emotionally the upper limit of recovery would be 75 per cent. Notwithstanding such a potential recovery, Mr Morrisson was "totally incapacitated for formal work" and he was "likely to remain so permanently".

28. By virtue of s63(1) a party to a proceeding before the Commissioner who "is aggrieved by any determination, order, ruling, or direction of the Commissioner in point of law" may appeal to this Court. Counsel for the insurers submitted that neither ground of appeal raised a point of law. Reliance was placed on Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641 where at 657 and 658 Windeyer J held that an appeal from an assessment of damages on the ground that the damages were excessive or inadequate raises a question of fact, not of law, for such a ground alleges that the verdict was against the weight of evidence, and not an allegation that there was no evidence to sustain it. See also Dixon a at 643. However central to Mr Mortisson's complaint is that there was no evidence to sustain the ultimate finding of the Commissioner. The grounds of appeal extend much further than simply complain that the amount of the award and the extent of the assessment of the injury were inadequate although ground (c) on its face raises only a question of fact. It could, l think, be simply converted into a point of law by including in it a complaint that the finding of a 25 per cent loss of mental capacity under Item 6 was not reasonably open on the evidence. See Instrumatic Ltd v Supabrase Ltd (1969) 2 All ER 131 per Lord Denning MR at 132. A point of law is involved if the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; (1956) AC 14 per Lord Radcliffe at 36. In those circumstances the court has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. Ground (b) effectively complains that the Commissioner misdirected himself as to the task required by law to be performed by him and l find it likely that the complaint is valid.

29. I am not persuaded that on the evidence the only conclusion reasonably open to a tribunal properly directing itself as to the law was that Mr Morrisson's permanent and incurable loss of mental capacity involving inability to work was total. But it was close to that and the finding of 25 per cent as the proportion of the loss was not reasonably open on the evidence. It follows that there was an error in point of law and I hold that ground (b) has been made out. The order that the employer, the City of Burnie, pay Mr Morrisson $22,787.45 will be set aside.

30. In these circumstances the parties were content that I assess the amount payable under 571. The Rules of the Supreme Court, O76, r54(1) provide the power. Pursuant to s71(1) Item 6 and (2)(b) I hold that Mr Morrisson has permanently and incurably lost 90 per cent of mental Jcapacity involving inability to work. The evidence of Dr Burges-Watson in particular leads me to that conclusion. His opinion that the incapacity might improve to a level of 85 per cent was only expressed as a possibility. I find that Mr Morrisson's residual work ability is slight and he will - only be able to work in extremely limited circumstances.

31. Payment should therefore be made of 90 per cent of 284 units. The Commissioner applied $320.95 as the value of a unit (see s65) for the year commencing 1 January 1992. Counsel for MMI/CMI submitted that the value of a unit for the year commencing 1 January 1990, the year of the original injury giving rise to the claim for compensation, should have been applied. It amounts to $295.10. The only reason given by the Commissioner for selecting the 1992 value of the unit was that "it is not until this year that it has been possible to make an assessment of the worker's loss of mental capacity for the purposes of Section 71 of the Act". This reason was similar to that given by him in the proceedings which eventually were heard on appeal by the Full Court in Pasminco Metals-EZ v Kaitinis 31/1993. As a member of that Court I said at 4 that it is the undoubted law of this State that for an injury not being a disease the unit for a claim under s71 is determined by the date of the occurrence of the injury and that the same principle should be applied to an injury which is a disease. Zeeman J at 16 was of the same opinion, applying the "fundamental notion" referred to by Neasey J in Fenton v J C Hutton Pty Ltd 34/1972 at 2. The relevant "injury", the date of the occurrence of which will determine the value of the unit, is the injury giving rise to the employer's primary liability under s25(1) and not the "injury" (or maim as the Commissioner called it) in the Table of s71(1) which has resulted from the s25(1) injury. The date of the relevant injury was 15 June 1990 at which time the value of the unit was, as I have said, $295.10. It will be ordered that the employer, the City of Burnie, pay Mr Morrisson $75,427.56 being 90 per cent of $295.10 x 284.

32. Mr Morrisson abandoned his cross-appeal in this regard.

33. It will be ordered that the appeal of FAI General Insurance Company is dismissed. The cross-appeal of Roger Joseph Morrisson is allowed in part and it will be ordered that the order of the Workers Compensation Commissioner that the City of Burnie pay Mr Morrisson $22,787.45 be set aside and in its place it will be ordered that the Mayor, Aldermen and Citizens of the City of Burnie pay him $75,427.56.