Hammond Worthington v Da Silva [2006] WASCA 180

Hammond Worthington v Da Silva [2006] WASCA 180 - WASCA 2006 case summary — Zoe

[84]

(a) On or about 18 November 1994 the respondent was injured in the course of her employment with Nell Gray Fashions. She was injured while carrying out repetitive ironing activities over lengthy periods of time. Her injuries were to her right arm, hand, shoulder and neck.

(b) The respondent's injuries were caused by the negligence of Nell Gray Fashions.

(c) As a result of her injuries, the respondent suffered and will continue to suffer loss and damage.

(d) In or about August 1999 the respondent engaged Fiocco Hopkins Nash to act for her in respect of her injuries.

(e) On or about 17 November 1999, the respondent instructed Fiocco Hopkins Nash to pursue a common law claim in negligence against Nell Gray Fashions.

(f) On or about 17 November 1999, Fiocco Hopkins Nash, on behalf of the respondent, commenced proceedings in the Conciliation and Review Directorate for a determination of her degree of disability for the purposes of s 93E of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the WCR Act") ("the WorkCover proceedings").

(g) On 17 February 2000, the WorkCover proceedings were adjourned indefinitely. The adjournment was sought by Nell Gray Fashions and consented to by the respondent, acting on advice from Fiocco Hopkins Nash.

(h) On or about 1 June 2000, Fiocco Hopkins Nash merged with the appellant, and as from about 1 June 2000 the appellant acted for the respondent. Mr Fiocco continued to be responsible for the conduct of the respondent's retainer.

(i) Between 17 February 2000 and 18 November 2000, no action was taken by Fiocco Hopkins Nash or the appellant to re-list the WorkCover proceedings, to issue proceedings in the District Court against Nell Gray Fashions, or otherwise to progress the respondent's claim against her former employer.

(j) The limitation period for commencing a common law claim against Nell Gray Fashions in respect of the respondent's injuries expired on 18 November 2000.

(k) The appellant was negligent in the conduct of the retainer (and thereby breached duties owed to the respondent in contract and tort), in that the appellant:

[89]

(a) Between January and July 1993, the respondent experienced pain or discomfort in her right hand or right arm ("right hand or arm symptoms").

(b) In or about April 1995, the respondent began experiencing pain or discomfort in her right shoulder and neck ("right shoulder symptoms").

(c) The appellant denied that Nell Gray Fashions was negligent as alleged or at all.

(d) The appellant admitted the retainer but did not admit any breach of duty.

(e) The limitation period for a common law action by the respondent against Nell Gray Fashions, alternatively for her right hand or arm symptoms, expired before August 1999.

(f) The limitation period for a common law action by the respondent against Nell Gray Fashions for her right shoulder symptoms expired before August 1999, alternatively before 17 November 1999.

(g) The appellant denied that at any relevant time the respondent had any real prospect of proving common law liability on the part of Nell Gray Fashions in relation to her right hand or arm symptoms or her right shoulder symptoms.

(h) The appellant denied that the respondent ever had any real prospect of establishing that she had a "significant disability" for the purposes of s 93E(4) of the WCR Act in relation to her right hand or arm symptoms, or, alternatively, to her right hand or arm symptoms and her right shoulder symptoms ("significant disability").

(i) If, which the appellant denied, the respondent ever had any real prospect of establishing that she had a significant disability, the appellant denied she would have elected to receive common law damages instead of weekly payments of compensation.

(j) If, which the appellant denied, the respondent had suffered any loss by the appellant not commencing common law proceedings against Nell Gray Fashions in relation to her right hand or arm symptoms or her right shoulder symptoms, the respondent's loss was reduced by the workers' compensation which she received from Nell Gray Fashions in respect of those symptoms.

[95]

My diagnosis is that she has a compressive and irritative neuropathy in the right median nerve at the wrist and that this is work related.

Her second problem is that of right ROTATOR CUFF TENDONITIS with Impingement and ... this problem is not work-related.

Her third problem is the flare-up of neck pain which occurred in May 1995 and is still present to a mild degree. This is most likely due to degenerative disease in the cervical spine. Her current neck symptoms, however, are minimal. I do not feel that her neck symptoms are work-related as they only began around late April 1995 whilst she was not working.

...

Her prognosis is such that she is likely to have ongoing residual pain and paraesthesia from the irritation in the right median nerve at the wrist. This pain is neuropathic in type and although apparently of mild to moderate severity, these symptoms are likely to persist for a further 3-5 years but hopefully will settle in the long term.

The right rotator cuff tendonitis with impingement has not responded to steroid injection and in my opinion she requires arthroscopic decompression of the rotator cuff.

I feel that the overall degree of pain and paraesthesia in the right hand has lessened to a mild degree compared with prior to surgery. However, she still has obvious tenderness in the median nerve with clinical signs of neural irritation which is more than enough to explain the ongoing symptoms in the right hand.

I feel that the problem with the right median nerve at the wrist is definitely work-related. The rotator cuff tendonitis and impingement in the right shoulder, however, only came on when she had been off work for a number of months and really is not work-related. Furthermore, her neck symptoms also began in late April 1995 whilst not working and are not work-related.

The reason why the carpal tunnel syndrome is work-related is the fact that she was ironing 8 hours a day for 5 days a week using a heavy iron. Pressure of the handle of the iron on the carpal tunnel and extending the wrist in this manner would be more than enough to explain her condition.

...

The right median nerve compression and irritation has left this lady with a 10% loss of the effective use of her dominant right hand and forearm for the next 5 years. Hopefully by the end of this period her pain level will have eased significantly and she will have better use of the hand.

She also has a 10% permanent disability in the right shoulder as a result of the rotator cuff tendonitis with impingement. This condition, however, is not work-related.

...

I have also read the report of my colleague Dr Alan Home, date [sic] 24 June 1996. I agree with Dr Home that the patient has a rotator cuff tendonitis and that this condition is not work-related.

With respect to the carpal tunnel syndrome, I feel that Dr Home has overlooked the fact that the median nerve is quite tender at the wrist and furthermore the patient demonstrates clinical signs of increased neural mechano-sensitivity on stretching the median nerve. These signs are typical of neuropathic pain although I agree that she does not demonstrate features of allodynia etc. She thus does have evidence of median nerve irritation and I feel that this is the prime reason for her ongoing pain. I do not feel that there has been a recurrence of carpal tunnel syndrome as this lady's symptoms never went away following surgery and, in fact, have changed very little despite surgery."

[138]

" ... The evidence before me from the plaintiff and her daughter is that when the plaintiff retained the first defendant, the date on which the plaintiff sustained her injury, was always regarded as 18 November 1994. This knowledge must have been known to Mr Fiocco given that he had the conduct of the matter during the first part of 2000 when he was a partner of the first defendant. Even if he did not actually have that knowledge he should have known this based on an even cursory reading of the file. In my opinion no reasonably competent solicitor would have failed to appreciate that any negligence claim against Nell Gray Fashions had to be commenced on or before 18 November 2000. I appreciate that the second defendant's position is that the limitation period had already expired but this clearly was not the view that was taken by the second defendant in the year 2000 and in any event is a matter of controversy which I will deal with later in this judgment. Whatever the position, the latest date on which the limitation period expired was 18 November 2000. If a writ was not filed on or before that day the plaintiff's claim against her former employer was lost for ever.

Because the second defendant elected not to call any evidence, there is no explanation from Mr Fiocco or anybody else as to why a writ was not issued against Nell Gray Fashions on behalf of the plaintiff prior to 18 November 2000. One explanation may have been that because the degree of disability of the plaintiff had not been determined the second defendant thought no action could be commenced. If that was the reason, it was wrong. The combined effect of s 93E(3) and s 93E(4) of the WCR Act is that a pre-condition for the awarding of damages is that the plaintiff has established, either by agreement or determination, that she has a degree of disability of not less than 16 per cent. Those subsections do not prohibit the commencement of an action in the absence of such a determination. Accordingly, an action could have been commenced against the plaintiff's former employer without a determination. The determination could have been made prior to the trial of the plaintiff's claim against her former employer. ...

Even if I am wrong in my interpretation of the operation of s 93E(3) and s 93E(4), and the plaintiff was required to obtain a determination before issuing a writ, in my opinion the second defendant failed in its duty of care by not doing anything to bring the proceedings before the Review Officer to a conclusion prior to 18 November 2000.

..."

[143]

"The onset of numbness in October or November 1993 was a sign of carpal tunnel syndrome. However, Dr Hayes' evidence was to the effect that the condition progressed gradually over time as a result of the plaintiff's continuous ironing. The plaintiff's evidence establishes, in my opinion, a clear and worsening progression of the syndrome commencing with discomfort then numbness and, finally, in October 1994, pins and needles in the right hand. Throughout this time, the plaintiff's former employer maintained a system of work which, for reasons I will expand upon later, negligently caused the plaintiff to suffer injury. In my opinion, the plaintiff's carpal tunnel syndrome was aggravated by her former employer's system of work which remained unchanged up to 18 November 1994: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120. In the circumstances, I find that the plaintiff's claim insofar as the carpel [sic] tunnel syndrome is concerned was not statute barred until six years after the plaintiff ceased her ironing work, that is, 18 November 2000.

In any event, what really incapacitated the plaintiff from work and triggered the adverse changes in her life outside work, was the onset of pain rather than the paraesthesia associated with carpal tunnel syndrome. As inconvenient as the paraesthesia was, it did not cause her to cease work and did not unduly inconvenience her life generally.

The plaintiff's pain was brought about in my opinion by irritation of the right median nerve as described by Dr Hayes. Dr Hayes attributed this injury to the plaintiff's ironing work. His evidence was that the injury could have occurred suddenly. Given that she had not experienced any pain prior to 18 November 1994, I think it is likely that the nerve irritation occurred on that date or very shortly before that date.

In my opinion the plaintiff's claim insofar as it relates to the pain caused by nerve irritation was not statute barred until 18 November 2000 because that injury did not occur until 18 November 1994 or shortly before that day. Whatever the precise day the plaintiff's action became statute barred I am of the opinion that it was at a point in time when the second defendant was acting for the plaintiff and had done so for some time."

[148]

" ... I am content to assume, as the parties did before me, that any action which the plaintiff would have brought against her former employer would have been brought after 5 October 1999 and would have been subject to amendments made to the Workers' Compensation Rehabilitation Act 1981 [sic] by s 32 of the Workers' Compensation Rehabilitation Amendment Act 1999 [sic] which commenced on 5 October 1999.

Part IV, Division 2 of the WCR Act applies to the awarding of common law damages against a worker's employer in respect of a disability suffered by the worker if that disability was caused by the negligence of the worker's employer and compensation has been paid or is payable under the Act: s 92B(1). A court must not award damages to a person contrary to the provisions of Part IV, Division 2 of the Act: s 93C.

Leaving aside the case of the worker who has suffered a degree of disability of 30 per cent or more (it being common cause in this case that the plaintiff does not fall within that category) a worker can only be awarded damages if it is agreed or determined that the worker has a degree of disability of not less than 16 per cent and he or she elects to retain the right to seek damages: s 93E(3) and s 93E(4).

Where the worker and the employer cannot agree on the degree of disability the question of the degree of disability may be referred by the worker to the Director of Conciliation and Review ('the Director'). The question of a worker's degree of disability can only be referred to the Director if the worker produces medical evidence from a medical practitioner indicating that the degree of disability is not less than the relevant level: s 93D(6). Once the Director has received a referral the Director must notify the employer, who in turn must notify the Director if a dispute arises as to the worker's degree of disability: s 93D(7) and s 93D(8). Where a dispute arises the Director is obliged to attempt to resolve the dispute by consultation with the parties: s 93D(9). If the dispute cannot be resolved by agreement then the Director is bound to refer the question for resolution under the provisions of Part IIIA (other than Division 2) of the Act: s 93D(10). The effect of these provisions is that the question of the worker's degree of disability is decided by a Review Officer acting according to Part IIIA, Division 3 of the Act. A Review Officer is not bound by the rules of evidence: s 84ZD. Legal practitioners do not have an automatic right of audience and can only appear if all parties agree or the Review Officer is of the opinion that a question of law has arisen or will arise in the proceedings, s 84ZE. A Review Officer may refer a question as to the nature or extent of a disability to a medical assessment panel. Section 84ZH is in the following terms:

[182]

" ... In my opinion, had all issues been determined in the plaintiff's favour at the notional trial, the trial Judge would have found that the plaintiff had sustained significant past economic loss and a total destruction of her future earning capacity. I am also of the opinion that the trial Judge would have found that the injuries had substantially and adversely affected the plaintiff's life in general.

... In my opinion, had all issues been determined in favour of the plaintiff, it is likely that a court would have decided that the plaintiff's case was one which could be fairly categorised as a most extreme case of disability of less than 30 per cent in degree. Taking the plaintiff's case as a whole, it seems to me that her working life has been devastated and that her enjoyment of life has been considerably diminished. The plaintiff appeared to me to be a person who enjoyed her work and had a full and active life at home. Her ability to work has been lost and she is unable to pursue the things which made her life worthwhile.

It follows from what I have said that if all issues had been determined in favour of the plaintiff the maximum amount of damages that she would have recovered would have been $132,482.85 being Amount A less her workers' compensation payments.

However, the plaintiff was by no means certain to have obtained a judgment against her former employer in the sum of $132,482.85. Whilst I think that there is a reasonable prospect that she would have satisfied a Review Officer that her disability was 16 per cent or more I do not think it can be said that that certainly would have happened. Further, on the evidence before me, I cannot say with any degree of certainty at all that her shoulder and neck injuries were attributable to the former employer's negligence. Both of these matters were important aspects of the plaintiff's case. If she had not succeeded before a Review Officer she would have not recovered any damages from her former employer. If a court found that the shoulder and neck injuries were not attributable to her former employer's negligence, her damages would have been substantially reduced. I think I should also take into account that the matter may have settled. This is a case in which a prudently advised plaintiff may well have settled taking into account the risks that she faced both before a Review Officer and then at any trial.

Although the plaintiff's case was not without its problems and risks, I do not think that it could be described as hopeless, indeed, in my view she had a reasonable case against her former employer. In all the circumstances of this case, and doing the best I can to estimate the value of the chance lost to the plaintiff by the second defendant's negligence, I conclude that the value of the chance lost to the plaintiff is $86,113.85 being 65 per cent of the maximum amount the plaintiff would have recovered had her action against her former employer been completely successful.

On 3 March 2005 counsel informed me that in addition to weekly payments and statutory allowances the plaintiff received another payment being $15,000. I was told that this payment was made to the plaintiff after her action had become statute barred. Both counsel told me it was appropriate to deduct this from the $86,113.85. Accordingly, the value of the plaintiff's lost chance is $71,113.85."

[184]

"1. (a) The learned trial Judge was wrong in law in firstly recognising that the finding of the Medical Assessment Panel dated 15 January 1997 was binding on him pursuant to Section 145E(5) [of the WCR Act] and then determining the issue of the Respondent's (Plaintiff's) disability at a different and higher level.

(b) Further, the learned trial Judge erred in finding that the Medical Assessment Panel had determined part only of the Respondent's disability such finding not being open as a matter of law or of fact.

The question posed to the Medical Assessment Panel was 'what is the nature and extent of the worker's disability?'

The answer was inter alia '... [the respondent] has suffered a permanent loss of the efficient use of the right arm at or about the right elbow equating to 10 per cent.'

In those circumstances there was no basis in law or in fact for construing the answer to mean the Medical Assessment Panel had dealt only with one aspect of disability in the light of the question posed.

(c) Further, that finding in the absence of recision [sic] or variation pursuant to Section 145F means that the Respondent (Plaintiff) would not have received a determination of disability of not less than 16% and would not thereby have been entitled to an award of damages at common law.

(d) Further, and in any event, the Respondent pleaded in paragraph 16.5 of the Statement of Claim that the said determination of the Medical Assessment Panel was binding on the Review Officer, which was admitted by the Appellant (Second Defendant). In the premises the learned trial Judge could not find that the Respondent could reasonably have obtained an assessment of not less than 16%.

(e) Further, it was common cause at trial that the trial Judge was bound by the said determination pursuant to the provisions of Section 145E(5) of [the WCR Act] [181].

(f) Further, the Respondent lead [sic] no evidence at trial to show or suggest that a variation of the opinion of the Medical Assessment Panel could have been likely on the balance of probabilities, such as to show or suggest any negligence on the part of the Appellant. Rather the evidence lead [sic] was to a contrary effect namely that the Respondent would have been unable to demonstrate a level of disability of not less than 16%.

[279]

" ... As the High Court indicated in its joint judgment, the relevant statutory provisions provide for compensation in respect, inter alia, of two classes of cases: 'loss' of the relevant thing, eg, by amputation; and loss of the use or effective use of that thing. The difference between the construction adopted by the High Court and this Court led, or would have led, to awards of a different nature in respect of those two classes of cases. Upon the approach adopted by the relevant judges of this Court, where a worker had suffered loss of use of, eg, a leg above the knee and separately of the leg below the knee, there would be two separate awards of compensation. On one view of the rationale adopted by such judges, this would apply also in the case of a loss of the leg, eg, by amputation.

At the risk of over-simplification the construction adopted by the High Court was directed to the reconciliation of the result of the statutory provisions in each of these two classes of cases. Where there has been a simple loss of, eg, a leg above the knee by amputation, the High Court accepted that only one award of compensation is to be given: one sum is awarded where the amputation is at or above the knee and a different sum if the amputation is below the knee. But, whatever be the point at which the amputation took effect, one sum was to be awarded. The Court recognised, I think, that in the second class of case, loss of use alone, the factual position may be more complicated. Thus, the injury may, as part of the single effect of it, cause loss of use to the limb both above and below the knee. There may be the same degrees of loss or different degrees of loss at different places. But the position may be more complicated. The injury may do one kind of damage (and so cause one kind of loss of use) above the knee and another kind of damage (and so cause a different kind of loss) below the knee. And the degrees of loss above and below the knee respectively may be quite different. The view taken by judges of this Court was that there were, as it were, separate items of 'loss of use' and that these were to be compensated for separately. The result of this would be, as the cases demonstrated, that the overall compensation in amputation cases would be different from (ordinarily less than) compensation in loss of use cases.

The construction adopted by the High Court has, I believe, rejected that approach. ..."

[288]

"In my opinion, aggregation is appropriate in a case of this kind. As can be seen from Dr Kennedy's report, the injuries to the appellant's left elbow joint, and the separate injuries to the left wrist joint and hand, led to different consequences. The former led to a significant reduction in the strength of flexion of the appellant's forearm and, to a lesser extent, extension, supination and pronation of the forearm at the elbow joint against resistance. The latter led to a significant reduction in the strength of dorsiflexion and palmer flexion of the hand at the wrist joint and to a decrease in its grip strength. It also led to a reduction in the strength of the intrinsic muscle supplied by the median nerve in the left hand and in sensation in the distribution of the median nerve in that hand. This was consequently a case in which each of Items 13 and 14 was properly applicable, with the result that s 93D(2)(ii) required that the percentages in question be aggregated for the purposes of s 93E.

This case is, in this respect, unlike Hutcherson. Because loss of the efficient use of a limb was equated, under the New South Wales Act, with loss of the limb itself, and because the percentage ascribed to the loss of a limb above the knee necessarily comprehended loss of that same limb below the knee, as was the case with a loss of the efficient use of the whole of the limb through a single back injury, the Court, in that case, inferred that there could be no aggregation. In my opinion, that is not the position in a case such as this, in which there are separate and distinct consequences for each part of the limb as a result of separate injuries to those parts and in which the injuries to the upper part of the limb seemingly did not result in the loss of efficient use of the lower part (the wrist and hand) (cp Baker v Crittenden, unreported; FCt SCt NSW; 17 July 1995).

I should add that, even if I should be wrong in my conclusion that aggregation is permitted in a case of this kind, it seems to me to be plain enough from Dr Kennedy's report that he considered that the relevant level of disability was more than 30 per cent. The report seems to me to indicate that, had he not attempted to separate out the components for the upper and lower arm (as he had been asked to do), he would have arrived at a degree of disability of 32 per cent in respect of the left arm alone (16 per cent of 90 per cent (14.4 per cent) plus 22 per cent of 80 per cent (17.6 per cent)."

[330]

"I come last to what may be the most difficult point of all, namely, assuming that the plaintiff has established negligence, has she proved anything other than nominal damages? It is necessary to say something of the nature of the problem which (as I understand the law) the court has to solve in determining the measure of damages in such a case as this. The point taken by counsel for the second defendants is that we have now to consider the question of liability as between the plaintiff and the electricity company (or their successors) as though it were a distinct proceeding within the present action, and that, if we find on balance against the plaintiff, that is to say, that she fails in her claim against the electricity company (that claim being considered as if it were a separate and existing proceeding), then it follows that her damage is no more than nominal. If that is the right approach, it must follow that in any case such as the present the result, expressed in terms of money, is always all for the plaintiff or nothing. I cannot, for my part, accept that as the right formulation of the problem. If, in this kind of case, it is plain that an action could have been brought, and, that if it had been brought, it must have succeeded, the answer is easy. The damaged plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated, then it is equally plain that she can get nothing save nominal damages for the solicitors' negligence. I would add, as was conceded by counsel for the plaintiff, that in such a case it is not enough for the plaintiff to say: 'Though I had no claim in law, still, I had a nuisance value which I could have so utilised as to extract something from the other side, and they would have had to pay something to me in order to persuade me to go away'.

The present case, however, falls into neither one nor the other of the categories which I have mentioned. There may be cases where it would be quite impossible to try 'the action within the action', as counsel for the second defendants asks.

It may be that for one reason or another the action for negligence is not brought until, say, twenty years after the event, and in the process of time the material witnesses, or many of them, may have died or become quite out of reach for the purpose of being called to give evidence. In my judgment, assuming that the plaintiff has established negligence, what the court has to do in such a case as the present is to determine what the plaintiff has lost by that negligence. The question is: Has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."

[340]

"Notwithstanding the observations of this Court in Norwest [(1984) [1984] HCA 59; 157 CLR 149], we consider that acceptance of the principle enunciated in Malec [(1990) [1990] HCA 20; 169 CLR 638] requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages."

[375]

"The difficulty which arises in the proper interpretation of the section is readily apparent. But in my opinion it does not prescribe an approach which simply requires the court to make a mathematical determination or assessment of the nature of the injuries suffered compared to the most serious form of injury, of whatever kind, which will not merit the determination of a degree of disability by the statutory processes of not less than 30%. That is simply not what the subsection says is to be done. What it requires is the assessment of damages in the ordinary way. The provision makes no alteration to that process as an exercise of the court's judgment pursuant to the common law. That must, I think, be what is meant by a determination 'according to the severity of the injury' because I cannot think that what the section requires is for the court to make two assessments.

It cannot be that the court would be required to assess damages in relation to the case before it according to the ordinary processes of the common law. It cannot then be the case that the court is required to imagine some form of most extreme case of a disability of less than 30% in degree and make an assessment of damages that would be applicable to such an hypothetical case. The section cannot require the proportion of the damages assessed in the instant case to be measured against that second assessment and then apply that proportion to Amount A so as to get the damages which may be actually awarded. That would be a nonsense and the policy considerations which would dictate that process are impossible to discern within the context of this legislation.

In my view, damages having been assessed in the ordinary way, according to what is described as the severity of the injury, they are to be measured against Amount A. If the damages as so assessed equal or exceed that amount, then Amount A may be the award of damages to be made because the process undertaken will establish that the case before the court is a most extreme case of a disability of less than 30 per cent in degree. Read in that way, the section truly caps the court's capacity to award damages at common law, and that does accord with the discernible policy considerations underpinning the legislation, which are twofold - to prevent recourse to the common law in cases of minor injury, and otherwise where recourse to the common law is permitted, to limit the quantum of damages which may be awarded, except in cases of really serious injury determined in accordance with the statutory process."

[379]

"The question has been raised in this case whether the Court, in making the determination about the severity of the injury, has to consider the economic consequences of the injury? Does the person in this category have to show that they have suffered very severe economic loss, and will a person with the same injury but no economic loss not be in the 'most extreme case' category? Examples were given during the hearing about a person with an injury to a forefinger, which may produce economic loss of hundreds of thousands of dollars in the case of a concert pianist, but no economic loss at all to an accountant.

In my opinion, economic loss suffered by the worker is relevant but not determinative. It is just one factor to be taken into account. McLure JA in Marshall v Lockyer was of the same opinion. If a person loses a finger then it may cause significant economic loss to a pianist, but the lack of economic loss caused to an accountant does not mean that the accountant's disability cannot be a 'most extreme case'. Other factors, such as the impact of the disability on the ordinary activities of life, such as sporting activities, will be relevant. The pain and suffering experienced will often restrict a person's capacity to carry out tasks, and so pain and suffering may be a relevant factor. There will doubtless be other factors. The Court will weigh up all those factors and make a determination about the severity of the disability.

Parliament chose not to make the extent of loss, assessed in the traditional way at common law, the determinant, as was the case in s 3C of the Motor Vehicle (Third Party Insurance) Act and in the New South Wales legislation. The amount of damages which might have been awarded at common law is merely one indicator of the extent of disability. It will not be the determining factor because damages are calculated by reference to both transient and permanent effects of an injury. The disability under consideration here is one involving permanent loss or permanent loss of the efficient use of a part of the body.

Under 93F, the proportion of Amount A is to be determined solely by reference to the severity of the disability. As Handley JA said in Dell v Dalton, this is an issue like other issues in the assessment of damages, and its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment. An appeal court will only be entitled to intervene and disturb the ultimate conclusion of the trial Judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injury. See Dell v Dalton (supra), at 533 - 534. The assessment is quasi discretionary in nature: Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376 at [40]. The parameters of the evaluation cannot be defined with precision: Ellis v Rantzos [2005] NSWCA 266 at [43], and see also Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253."

At a glance

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Judgment (399 paragraphs)

Hammond Worthington v Da Silva [2006] WASCA 180 (7 September 2006)

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Legislation Cited (4)

Cases Cited (20)