SUBMISSIONS
22 The respondent conceded the correctness of grounds 4 and 5 in the Amended Notice of Appeal, and submitted that the result, in the absence of agreement, should be that the matter be remitted to the Compensation Court for orders reflecting the assessment of 20% loss of use of the sexual organs and any consequential adjustment of the s.67 award. The remaining issues were argued under two headings, first, that there had been a denial of natural justice in deciding the case on the basis of psychological or psychiatric injury, when this had not been claimed; and second, there was no evidence justifying a finding that any psychological or psychiatric injury was permanent.
23 Mr. Hislop QC for the appellant pointed to Compensation Court rules 9.1 and 9.2 as requiring an application for compensation to contain "such particulars as are necessary to enable the opposing party to identify the case he is required … to meet". Mr. Hislop submitted that the application made no reference to any psychological injury or functional overlay, as it should have done if the respondent was to succeed on the case as found by the primary judge. He noted that no amendment was sought to the application, and he submitted that the appellant conducted its defence accordingly. No objection was taken to the medical evidence, as it was tendered, precisely because the case was purely one of physical injury and physical problems. Had it been a psychological or psychiatric case, many issues would have required exploration. There would have been cross-examination of the respondent on psychological matters, and there was no such cross-examination in this case. The psychological and psychiatric evidence from the experts would have been the subject of detailed exploration.
24 Mr. Hislop submitted that in the passages quoted, the primary judge never indicated that he was proposing to deal with the case as including a psychological issue, and the counsel for the respondent never submitted that the primary judge should do so. Yet, in his decision, the primary judge took a psychological component into account in every aspect of the case. This made the trial unfair to the appellant.
25 Next, Mr. Hislop submitted that evidence referred to by the primary judge to the effect that the prognosis of the respondent in relation to his depression was "poor" could not justify a finding that the condition was permanent; and in any event, certainly could not justify a finding that the impact of any psychological condition upon the impairment or loss of use of various parts of the body was permanent. The term "permanent" as used in the Act was used in its ordinary sense: see Ansett Australia Limited v. Dale (2001) 22 NSWCCR 527 at [39]; and requires in effect a finding on the balance of probabilities that the condition will never improve.
26 Mr. Watson for the respondent referred to State Rail Authority (NSW) v. Reodica (2001) 21 NSWCCR 308 for the proposition that the Compensation Court is not a court of strict pleading, and is required by s.17(1) of the Compensation Court Act 1984 to decided any matter "upon the real merits and justice of the case".
27 In that case, the worker in his application claimed that he suffered post-traumatic stress disorder (PTSD) as a result of a physical and verbal assault on a specified day, and also as a consequence of the nature and conditions of his employment. The matter was heard by a Commissioner, who was not satisfied that the alleged physical assault took place and found in any event that PTSD was not established; and he made an award for the employer. The worker appealed to a judge, who found that there was evidence suggestive that the nature and conditions of employment may have caused psychological injury in the form of anxiety, depression, or adjustment disorder; and concluded that the Commissioner had erred when he confined himself to considering PTSD; and he ordered a new hearing. The Court of Appeal dismissed the employer's appeal from that decision.
28 Mr. Watson submitted that the application in this case correctly alleged physical injury at work, and correctly alleged impairments and loss in relation to various parts of the body. The medical evidence served by the appellant disclosed psychological injury as part of the causation of the various impairments and losses. Those medical reports were tendered without objection at the beginning of the case: if the appellant had wished to take the point that no reliance could be placed on psychological causes, that matter should have been raised by the appellant at that point, so the matter could have been crystallised at the outset of the hearing. Although the submission was made by the appellant that the respondent could not rely on a psychological case, the primary judge plainly indicated that he had it in mind to take that course, relying in part on the circumstance that the appellant tendered its own psychiatric evidence. Had the appellant wished to do more than take a technical point that the psychological case was not open on the application, the appellant's counsel should then have submitted that the case would have been conducted differently had the appellant understood that any sort of psychological case was being mounted, and should have submitted that it would have been unfair to decide the case on that basis, and/or should have sought an adjournment to deal with the matter.
29 On the other question, Mr. Watson submitted that the evidence of poor prognosis was material on which the primary judge could properly conclude that the psychological condition was permanent; and in any event, the medical experts, in particular Dr. Watson, who gave evidence of percentages of impairment and loss, partly in reliance on psychological factors, gave evidence that the relevant impairment and loss was permanent.
30 In reply, Mr. Hislop submitted that the requirement for decision of any matter upon the real merits and justice of the case included a requirement that natural justice be afforded. Furthermore, when the appellant's counsel took the point that it was not open to the respondent to rely on a psychological case, counsel for the respondent should have made it plain, if it were the case, that the respondent was relying on a psychological case, yet he did not do so. The primary judge gave no indication of any decision that he would do so, and indeed gave no reasons for his decision to do so in his reasons for judgment.