Parkins v Prestige Group (Australia) Pty Ltd [1990] NSWCC 9; (1990) 6 NSWCCR 75 (2 March 1990)

[1990] NSWCC 9; (1990) 6 NSWCCR 75 (4863-89)

Parkins v. Prestige Group (Australia) Pty Ltd

Compensation Court of New South Wales: Manser J

2 March 1990

Assessment and amount of compensation - Amount of compensation - Lump sum payment for pain and suffering - Assessment of amount - Factors to be considered - Workers Compensation Act 1987, section 67

Words, phrases and maxims - "the same injury" - Workers Compensation Act 1987, section 67(1)

Words, phrases and maxims - "resulting from the loss" - Workers Compensation Act 1987, section 67(1)

Words, phrases and maxims - "distress and anxiety" - Workers Compensation Act 1987, section 67(7)

M. Perry, for the applicant

C. Hoeben, for the respondent

Ex tempore

MANSER J: In this matter the applicant claims compensation under the provisions of sections 66 and 67 of the 1987 Act, together with her hospital and medical expenses under section 60, and interest under section 19 of the Compensation Court Act.

The worker suffered injury whilst in the respondent's employ on 15 December 1988 when her hand was caught in a press that she was operating with the result that she suffered crush injuries to her left index, middle and ring fingers. The injuries were so extensive that there was in respect of some of them, from what I can gather, a traumatic amputation but certainly amputations of parts of the injured digits took place at the Westmead Hospital within a few hours of the injury.

The worker said that at the time of the injury the machine that she was operating malfunctioned and that this was the explanation for the accident. At the time she felt emotionally shocked. She observed her hand in its glove caught in the machine and pulled her hand from the machine and thereby from the glove, exposing her severely damaged hands to view.

She said that she was so stunned by the appearance of her hand that she was unable to speak but immediately burst into tears. She was assisted to the first-aid station by which time her hand had started to pain and she had commenced to cry and be, obviously, emotionally distressed. She waited for some one-half hour in the first-aid station while an ambulance was obtained before being conveyed to the Westmead Hospital.

Throughout the time from the occurrence of the accident until her admission to the Westmead Hospital, with the exclusion of a short period when the worker observed her hand, she said that she was unable to look at it because of its shocking state. Whilst being conveyed to the hospital in the ambulance the pain in her hand was very severe and remained so upon her admission to the hospital.

At that stage she appears to have observed her hand further but was again shocked by its appearance which she was able to in part describe as presenting with blood spurting from the damaged digits. The effect upon the worker was at this time to aggravate the emotional distress that she was then feeling.

She remained in a room at the hospital for some two hours with her hand bandaged and her arm elevated. She received, so far as she recalls, only one analgesic tablet which was of little effect, and so the situation remained until the bandages were removed preparatory to her undergoing corrective surgery. When the bandage was removed, she again caught sight of her damaged hand and felt another aggravation of her emotional distress.

After the operation she said that she was placed in a room with her arm elevated and remained reasonably content whilst the effects of the anaesthetic were upon her, but as the beneficial effects of it wore off, the pain returned with increased intensity. She remained in hospital for some four days during which her pain was constant. She said that when she returned home and in the ensuing weeks and months, she was greatly disabled by pain and inability to undertake even the most simple tasks of dressing and washing.

During this time she was due to return to the hospital for the removal of her sutures but the Christmas holiday period intervened and for some reason which was not made clear the removal of the sutures was postponed for some days, during which there was a deal of skin growth, making the removal of the sutures more painful than one would otherwise expect.

For the six months after the injury the worker remained off work and was paid compensation. Her pain during that time eased slightly and at the end of the six months she resumed work upon selected duties. As I apprehend it, her work from that time until the present has been in the packing of metal dishes such as baking dishes and the like and her hours of work have varied having regard for her increasing ability to remain on the job.

She says that her pain has gradually eased and that she is becoming more adept in the use of her hand with respect to the digits that remain and that she is coping better psychologically with the injury. However, her disability has left her with a seriously impaired hand function. She is not able to grip fine things because the stump of her index finger, with which she is able to effect a pinch grip with the thumb, is tender and liable to extreme pain if knocked. She is able to transpose the little finger and thumb to establish a pinch grip. Her left middle finger and ring finger are, for all intents and purposes, useless.

She says that she is profoundly embarrassed by her injury. She says that sleeping is difficult for her, that she must put her left hand under the blanket at all times, because the night air so affects her hand that she is woken by pain. She says that she has difficulty in ordinary household tasks; she is unable to wash up; if she puts her hand in cold water, that it causes her pain, and that bumping the stumps of her fingers makes them very sore.

She was, prior to her injury, in the habit of driving her manual motor vehicle, but since that time she is not able to drive, because she cannot grasp the gearstick to change gear. One can readily understand why this was so, depending on the configuration of the gearstick, as the worker's hand really is akin to a flat surface with a very large hole taken out of it.

In other words, one could readily conceive that she would not be able to grip any object with the whole of the hand, because of the absence of the substantial part of both the left middle and ring fingers.

Prior to arriving in this country in 1985 Mrs Parkins, who is Philippino by birth, was trained as a hairdresser and dressmaker. She worked at both of those occupations in the Philippines and, in addition, worked in a family business in some clerical type of capacity.

From the time she arrived in Australia she has not been employed as a hairdresser or dressmaker, but it was her practice to perform those tasks for family and friends. She said that her inability to perform those functions now is a matter of considerable distress for her. She cannot hold a comb and any attempt at using the left hand would appear to be fruitless.

She says that, although the sensitivity in her damaged fingers has improved over time and that she is getting used to the fact of the injury, she is, nevertheless, saddened by it and very embarrassed. I have observed the damaged hand and I have read the various medical reports which have been tendered in support of the cases mounted by the parties. I must say I found some of the assessments of the respondent's medical advisers, having regard to the extent of the worker's injury, almost fanciful.

The worker demonstrated the movement of hand and fingers and it was obvious that the hand has been grossly impaired by this injury. The most realistic assessment of the worker's loss is to regard it with reference to the loss of efficient use of the hand, as opposed to the loss of the parts of the various digits. Given my own observation of the worker's use of the hand and her evidence about those matters, it seems to me that the most realistic assessment is that made by Dr Eggins in his report of 16 June 1989.

The parties have both postulated that the correct approach to the compensation of this injured worker for her losses, under section 66, is to consider only the fingers. The respondent contends that the correct approach is to regard only the amputations themselves. The worker has postulated that the proper basis of assessment is the loss of efficient use of the individual digits.

The worker relies upon an assessment by Dr Herbert that she has lost 50 per cent of the efficient use of the index finger and 100 per cent of the middle and ring fingers. The approach which I prefer is that suggested by the Notes to the Table of Compensation for Permanent Injuries, which follows section 73 of the 1987 Act. Note (c) says:

"If a loss (not being the impairment of the back, neck or pelvis) may be compensated by a combination of items in the Table or by a proportionate loss of a single item, the loss shall be compensated by a proportionate loss of a single item (eg, loss of 2 or more fingers to be compensated as a proportionate loss of the use of the hand)."

If I approach the matter in this way, then the loss of use of the hand, which Dr Eggins has proposed, results in a payment of $30,459. I was informed, and it is agreed, that the maximum amount payable at the time of the worker's injury was $85,200.

Consequently, I order the respondent to pay the applicant the sum of $30,459 in respect of 55 per cent loss of the efficient use of the left hand.

So far as the worker's claim under section 67 is concerned, the amount payable at the time of her injury, as a basic lump sum, was $42,600. The section - that is, section 67 - is not without its difficulties when one comes to make an assessment of pain and suffering for which the worker is entitled to be compensated, having regard to some of the terms used in the section. Section 67(1) says:

"A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $42,600."

On first appearances it would seem that the pain and suffering for which compensation is payable is pain and suffering "resulting from the loss or all of those losses". Clearly, it could not have been intended that the pain and suffering to be compensated for was that which results from, in the legally understood sense, a loss, particularly when one goes to subsection (7) and the definition of "pain and suffering".

It would be a rare case indeed where the loss itself caused actual pain, as opposed to the injury which resulted in the loss. It seems to me more likely that the intention of the section is to award compensation for the pain and suffering which a worker experiences as a result of the injury which gives rise to the loss or losses which feature in the Table.

A licence to apply such an interpretation to the subsection is affirmed by having regard to the use of the words "the same injury" appearing in the subsection. It does not seem to me to have been the intention of the Legislature that, necessarily, two or more losses would have to occur in the same injury, if "injury" meant the actual physical or mental effect upon the injured worker. It seems more likely that the words 'the same injury' has the meaning of the event which caused the injury to the worker, rather than the actual injury itself.

The use of the word "injury" in this way is not unusual. Indeed, in Commonwealth v. Beattie (1981) 35 ALR 369, the Full Court of the Federal Court drew attention to the use of "injury" in this way, in another context. Consequently, the circumstance which the subsection contemplates when it refers to "two or more of such losses occurring" as prescribed in the Table, contemplates a situation where the worker may suffer more than one loss, but more than one loss in a specific accident.

To illustrate the point, one needs only to look at the worker in this particular case. She has suffered injuries to three fingers of her left hand. These injuries may be regarded as separate injuries - if the word "injury" is to be regarded as a reference to the physical effect upon the worker - is correct. So taken, it would mean that the worker had suffered two or more losses as a result of more than one injury. But all of those injuries were occasioned at the same time, consequently, as I said before, it seems to me clear that the words "the same injury" were not intended to be read in this restrictive way, but refer both to the circumstance of the actual injury to the person and to the circumstances which led to the actual injury to the person.

Although section 67(1) talks of:

" ... compensation for pain and suffering resulting from the loss or all those losses ... "

subsection (3) adds an element for consideration, when one comes to consider the compensation in a case other than "a most extreme case". Subsection (3) says:

"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 the severity of the loss or losses." (emphasis added)

Consequently, when one comes to consider the amount to be awarded in a non-extreme case, one takes into account, in addition to the degree and duration of pain and suffering, the severity of the loss or losses. One can conceive of circumstances where a person may suffer severe losses, but pain and suffering is of a relatively short duration, but nevertheless qualify under subsection (3) for a substantial proportion of the maximum amount payable under the section, having regard to the severity of the loss or losses.

The interesting thing to contemplate, then, if that view be correct, is what one takes into account in determining what is "a most extreme case".

In the instant case the worker has demonstrated that she suffered pain at an extreme level. When one looks at the definition of "pain and suffering" in subsection (7) one is faced again with difficulty of the language, because "pain" is qualified by the appellation "actual". One wonders what non-actual pain might be, given that pain is a subjective sensation experienced by the sufferer and which, so far as I am aware, from evidence which has frequently been before me in other cases, is impossible to objectively measure.

If the intention of the Legislature, in including the word "actual" in the definition of "pain and suffering", meant to emphasise or restrict pain to pain that was real, then it seems to me that they have added a superfluity. One can readily accept that there may have been an intention to direct the Court's mind to questions of severity of pain for which compensation is sought, but the distinction between pain, as it is generally understood, and "actual pain" is hard to imagine .

But the definition of "pain and suffering" is broader than mere "pain" and includes distress or anxiety suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment.

The definition raises, again, the problem to which I have already alluded, of interpreting the words "resulting from the loss" appearing in section 67. For the reasons which I have already given, it seems unlikely to me that subsection (7), in defining the pain and suffering for which a worker is entitled to be compensated, restricts it to that which results from the loss itself. I conclude that what was intended was that the pain and suffering referred to in subsection (1) and in the definition was the pain and suffering caused by the injury to the worker and not only the loss itself.

Otherwise one would have the ludicrous situation of a person being a person, such as the worker here, who suffered a horrendous injury, extreme pain and psychological discomfort, but not being compensated because the loss itself was - that is to say, the loss of a number of joints on three fingers of a hand - not, per se, painful.

The definition in subsection (7) also raises interesting questions as to what is to be included in "distress or anxiety". It would be within the knowledge of ordinary humans that pain or the experience of pain can be, or lead to, distress or anxiety when those terms are used in the general and non-technical sense. Similarly, where an injury causes, as it has in this case, embarrassment and sadness, in other words, where it has disturbed the psychological or mental equilibrium of a person, that this could be described in ordinary parlance as distress or anxiety.

There is no doubt that there is a technical meaning in medicine for the term "anxiety". But it seems to me that what was intended here by the coupling of the term with one which bears no technical meaning, so far as I am aware, of "distress", that the intention of the Legislature was to provide a broad, general description embracing those disturbances of the worker's psychological or mental equilibrium, which could reasonably be described as distress or anxiety.

Even if this view be incorrect, it seems to me that there was sufficient in the instant case to justify the view that the worker has been greatly distressed by her losses, even if she has not established that she suffers anxiety in the medical technical sense. The use of the disjunctive "or" in (7)(b) permits of a consideration by the Court of the elements of distress separate from any elements of anxiety.

Consequently, if the Court is satisfied that the worker suffered pain or distress or both then the Court is entitled to consider the awarding of compensation in respect of that pain and suffering.

It has been urged upon me that the injunction contained in section 67(3) means that the maximum amount is not to be awarded except in the most extreme case of pain and suffering when looked at in a global way. In other words, if one could imagine the most horrific circumstances leading to pain and suffering as defined, then anything which falls short of that is to be compensated at less than the maximum amount.

In determining an amount under the section one is tempted to take the approach of determining what the amount ought to be, having regard for the degree and duration of pain and suffering, and the severity of the loss or losses, and then apply the limit, which section 67(1) lays down. Notwithstanding that there are opinions to the contrary, there is some reason to believe that such an approach is intended by the Act by the use of the words in subsection 67(1) "an amount not exceeding $42,600".

Such terms are usually applied to impose a limit upon the amount which can be awarded, and do not give guidance to the actual amount which may be determined. In other words, one may come to a view about what ought to be the amount of compensation having regard to the criteria to which I have referred should be, but which might exceed the maximum prescribed, but the amount awarded would be limited by the maximum prescribed.

I am encouraged to that view by the difference in language employed in section 67(1) and 67(3) when reference is made to the amount of compensation payable under the section. Whereas 67(1) talks of an amount not exceeding "the prescribed amount", 67(3) refers to the maximum amount payable. No such amount is prescribed. In other words, there is no amount payable or a maximum amount payable. What is payable is compensation which is limited by 67(1).

However, if one assumes the intention of the Act to be that the maximum amount which can be awarded under the Act in an extreme case is $42,600, then anything less than the extreme case is to be compensated at a lesser amount, then the section makes sense. In the instant case, having regard for the factors which are referred to in subsection (3), it seems to me that the amount payable to the worker as being reasonably proportionate to that maximum amount, having regard to the degree and duration of pain and suffering and the severity of the loss or losses, must be substantial.

Minds may differ as to how the section is to be applied, but I have had the benefit of observing the worker, who is a woman who obviously is concerned at her appearance. She was well-dressed, and is obviously possessed with a high degree of poise. She is a person who one would reasonably expect to be concerned at the continuing affect upon her appearance that her losses have caused.

There is no doubt, as Mr Hoeben has urged upon me, her pain has diminished over time and that she has, on her own evidence, become more used to her injury. But it is clear from her demeanour in the witness-box that she still experiences great emotional distress at the injury which she has suffered to her left hand. As I have said, the hand has been severely impaired by this injury to the extent of 55 per cent.

In all the circumstances, I think an amount of $35,000 is reasonably proportionate to the maximum amount, having regard to the degree and duration of pain and suffering, and the severity of the loss or losses suffered by the worker.

I order the respondent to pay the applicant the sum of $35,000 pursuant to section 67 of the Workers Compensation Act.

The third and final claim concerns the amount which the worker is entitled to, if any, of interest pursuant to section 19. The report upon which I based my determination as to the loss of use of the left hand suffered by the worker was that of Dr Eggins dated 16 June 1989. There were other assessments made at various times, but that is the assessment which I have found to be most reasonable and consistent with the whole of the evidence.

So far as pain and suffering is concerned, that is a matter which was solely within the province of the Court, and although the medical reports may provide some guidance to an employer as to the possible extent of an assessment of pain and suffering, it remains to the Court to be satisfied on the day, having regard to the whole of the evidence. Unless the employer is placed in about the same position as the Court, and thereby enabled to make an independent assessment, it seems to me that the employer would not be able to make a reasonable estimate of the likely result, and should thereby not be penalised for nonÄpayment of an amount under section 67.

Consequently I am prepared to award interest to the applicant only on so much of the awards applies to the amount payable under section 66, from 16 June 1989 to today.

I order the respondent to pay the applicant's expenses under section 60, and to pay the applicant's costs.

ORDERS MADE ACCORDINGLY

Solicitors for the applicant: Taylor & Scott

Solicitors for the respondent: Hickson Lakeman & Holcombe