(b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66)."
and;
(d) the various money amounts were subject to indexation.
9 In the result the judge arrived at a figure of $32,500, which meant that no damages were awarded for economic loss.
10 The judge said that he turned to quantum, and then went through a number of matters relevant to quantum. They included medical reports in which doctors had in the familiar manner stated percentage permanent losses of efficient use of the plaintiff's right hand or arm. The percentages were in the range 15 to 19 per cent.
11 The judge then said -
"The parties are agreed that pursuant to s 151G and s 151H of the Workers Compensation Act 1987 I am required to assess the Plaintiff's injury as a percentage of a most extreme case (see: Southgate v Waterford (1990) 2 NSWLR 427 and Dell v Dalton (1991) 23 NSWLR 528) and that certain consequences follow depending on the percentage which I determine. Some figures have been agreed upon between the parties which I shall indicate below."
12 The judge then referred to the submission of counsel for the plaintiff that it was very significant that the plaintiff was right hand dominant and that his employment was of a manual nature. He recorded the submission, "He says that in assessing the extremity of the accident compared to a most extreme case, I should treat the injuries as more significant than the fact that the plaintiff is a manual worker than if he were not". Something is astray in this, but the sense is clear enough. After some comments the judge concluded this paragraph of his reasons, "In assessing the level of impairment I do take into account that the injury was to the dominant hand, and that the plaintiff used both his hands for his work".
13 The judge then said -
"I assess the Plaintiff's injuries at 22% of a most extreme case, which on the table leads to an amount of $32,500 for non economic loss. In coming to this view I have had regard to the degree of assessment of impairment of the medical experts in relation to the fingers and hand but am not satisfied that the elbow and shoulder complaints are connected with the accident to the figures, and note that they do not seem to have persisted, even if they were. I have placed significance on the Plaintiff's lack of continuing difficulties in the domestic environment and his expressed willingness to return to work without restriction."
14 The beginning of the problem is this. It is agreed that 22 per cent of a most extreme case does not translate, according to the formula, to $32,500. With the changes in the money amounts produced by indexation, a proper calculation would arrive at $42,540.
15 However, the problem goes further. The judge said that he got the $32,500 from "the table". Mills Workers Compensation has as part of its "Benefits Guide" section what might be called a table showing the indexation of the money amounts, none of the indexed amounts being $32,500, but it does not have a table of the results of various calculations using the formula. It also has a table which has $32,500 as the benefit for a percentage of 22 per cent. The conclusion that the judge referred to the last mentioned table is all but irresistible, and it should be said that in the appeal counsel for the defendants properly did not resist it. But the table has nothing to do with the formula in s 151G(5). It is headed, "Ready-reckoner of benefits payable under s 66(2) of the Workers Compensation Act 1987 - applicable for injuries received on or after 1 January 2002", and the percentages are in a column "Degree of permanent impairment (%)".
16 In my opinion, regard to this establishes the probability that the judge's reasoning process was flawed.
17 Counsel for the defendant submitted that the judge had in paragraph 35 posed the issue and in paragraph 37 come to his conclusion in terms of the percentage of a most extreme case, not the degree of permanent impairment, and that the error was no more than referring to a wrong table to find the result of his assessment of 22 per cent of a most extreme case. On the other hand, the judge had spoken of assessing the level of impairment and had had regard to the doctors' assessments of degrees of impairment, and the heading to the table and the description in the percentage column were plain. I do not feel able to exclude that the judge misdirected himself in coming to the percentage of 22 percent itself, in some kind of confusion between the percentage of a most extreme case and the percentage degree of impairment to which the alternative in s 151H(2A) may possibly have contributed.
18 Just what happened in the reasoning process cannot be seen, but in my view within the principles of appellate intervention in assessment of damages for personal injuries discussed in Moran v McMahon (1985) 3 NSWLR 700 error has been shown, whereby the judge's assessment cannot stand. There would be in my view a miscarriage of justice if it were permitted to stand.
19 Counsel for the defendants submitted that the result was not that there should be a new trial as to damages. Rather, he submitted, the appeal should be adjourned so that application could be made to the judge for correction pursuant to the slip rule, either in the inherent power to correct mistakes, if such a power is held in the District Court, or pursuant to its Rules. He referred to Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446 for the width of the slip rule there accepted.
20 However, it is necessary that there was an accidental slip or omission. I an unable to see that the flaw to which I have referred could be so described.
21 While of course no judge would deliberately engage in erroneous reasoning, that is not what the slip rule addresses. By whatever his process of reasoning, the judge arrived at the percentage of 22 percent of a most extreme case, and I do not think that it would be a proper exercise of the slip rule for the matter to go back to the judge for him to say that he really meant a different figure and explain how he arrived at it, or to confirm that he meant that figure and explain where his reasons presently do not the reference to the table. The submission of counsel for the defendants really amounted to the matter being returned to the trial judge for him to have a second go at arriving at the percentage of a most extreme case and giving reasons, and that is not what the slip rule deals with.
22 In my opinion, therefore, the order which must be made is that the judgment of the trial judge be set aside and that there be a new trial limited to assessment of damages.
23 The questions then remaining are the costs of the appeal and of the trial.
24 In my opinion no order should be made as to the costs of the appeal, to the intent that the appellant and the respondents bear their respective costs of the appeal. This was accepted by counsel for the defendants. Counsel for the plaintiff submitted he should have a more favourable order, saying that it was necessary for him to come to this Court in order to obtain the new trial as this Court was the only place where that relief could be granted. The submission overlooks, however, that only this morning when the appeal was called on for hearing was the matter of the arrival at the 22 per cent raised by the Court, it not having been a point taken by the appellant. Leave to amend the notice of appeal was in due course sought and granted, but the late raising of the successful ground of appeal exposes the significant possibility that if the point had been taken in the beginning by the plaintiff the costs of the appeal would not have been necessary. There are such things as consent orders.
25 As to the costs of the trial, I consider that an order should be made that the costs of the trial should abide the result of the new trial.
26 SANTOW JA: I agree.
27 IPP JA: I agree.
28 GILES JA: The orders therefore are: appeal allowed; set aside the judgment and orders for payment of costs ordered by the trial judge; order that there be a new trial as to damages; make no order as to the costs of the appeal; order that the costs of the trial in the District Court abide the result of the new trial.