Fraser v Water Board [1993] NSWCC 9; (1993) 9 NSWCCR 263 (22 April 1993)

[1993] NSWCC 9; (1993) 9 NSWCCR 263 (7249-92)

FRASER v. WATER BOARD

Compensation Court of New South Wales: Egan J

22 APRIL 1993

ASSESSMENT AND AMOUNT OF COMPENSATION - RECONSIDERATION OF AWARD - POWER TO RECONSIDER - LUMP SUM COMPENSATION FOR PAIN AND SUFFERING - UNUSUAL CIRCUMSTANCES - SERIES OF LATER OPERATIONS WITH AMPUTATION OF LEG - WORKERS COMPENSATION ACT 1987, SECTION 67 - COMPENSATION COURT ACT 1984, SECTION 17(4)

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION - LUMP SUM PAYMENT FOR PAIN AND SUFFERING - POWER TO RECONSIDER - UNUSUAL CIRCUMSTANCES - SERIES OF LATER OPERATIONS WITH SUBSEQUENT AMPUTATION - COMPENSATION COURT ACT 1984, SECTION 17(4) - WORKERS COMPENSATION ACT 1987, SECTION 67

P.M. Morris, for the applicant

M.J. Sternberg, for the respondent

Cur adv vult

EGAN J: The applicant in this matter suffered injury on 13 February 1989 when she fell and a piece of glass penetrated her left leg.

She claimed compensation under sections 66 and 67 in respect of her injury and those proceedings were heard and determined on 14 September 1990.

At that time the applicant received an award in respect of 30 per cent loss of efficient use of her left leg at and above the knee and a sum of $30,000 in respect of pain and suffering.

Subsequently her symptoms in the leg worsened and she underwent a series of operations to correct the vascular deficiency in her leg. None of these operations proved to be of any long term benefit and ultimately on 12 May 1992 she underwent an amputation of her left leg below the knee.

She now brings a further claim under section 66 and seeks a review of the Court's award under section 67. As brought her claim was originally for 100 per cent loss of the left leg below the knee but by consent during the hearing of the matter a claim for the loss of the left foot was added having regard to the decision of the Court of Appeal in J ODLIN SHOPFITTING PTY LTD v. KALJANAC (1993) 9 NSWCCR 156.

There was no real issue in relation to the claim in respect of the loss of the left leg below the knee. However, counsel for the respondent submitted that so far as the loss of the foot was concerned there had been no injury to the foot and this claim should be rejected.

Having regard to the evidence of the applicant and the reports of the various medical practitioners it appears clear that the operative treatment and loss of the lower leg and foot resulted from the injury of 13 February 1989.

It follows therefore that the loss of the foot although occasioned by the injury to the thigh is compensable under section 66 (DEPARTMENT OF PUBLIC WORKS v. MORROW (1986) 5 NSWLR 166).

A combination of the loss already awarded together with the appropriate sums under section 66 in respect of the total loss of the lower leg and foot takes the matter beyond the maximum for multiple injuries under section 66 which was then $85,200. The maximum then still to be awarded under section 66 in this matter is $66,030.

So far as section 67 is concerned it was submitted that this should be dealt with by way of a reconsideration of the earlier award in September 1990.

Reference was made to STAKER v. NORTH BROKEN HILL PTY LTD [1992] NSWCC 18; (1992) 8 NSWCCR 332. The situation in that case was different in that what was sought to be reconsidered was a consent award and the matter really turned on the terms of the agreement reached by the parties on the prior occasion.

In the instant case there was no such agreement and the Court made a determination of the proper amount under section 67 based on the evidence then before it.

While it would seem clear that it is desirable that claims under section 67 including as they do future pain and suffering should not be the subject of repeated claims the circumstances of this case are somewhat unusual.

Section 17(4) of the Compensation Court Act provides:

"Nothing in subsection (3) shall prevent the Court constituted from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision previously made or given by the Court, all of which the Court shall have authority to do."

The power to reconsider does not exclude reconsideration of awards under section 67. The question then is whether it should be exercised. Of the many thousands of cases dealt with by this Court each year only one or two would justify the exercise of the power. In this instance I am of the view it should be.

When the matter was heard in September 1990 the medical evidence, although cautious as to the future, did not suggest that any further surgery was probable.

Dr J. Walton Spence in November 1989 ... "the circulation could deteriorate even further and major surgery to replace this blocked graft is essential". This was followed by a report of 15 February 1990 " ... the reconstruction of the vascular supply was carried out in December 1989 with a successful result".

Dr Shields 23 October 1989 "It is likely that she will need her graft revised."

Dr Lippey 19 January 1990 said "I do not expect the arteries to deteriorate much further ...".

Dr Gray Weale (for the respondent) in a report of 7 June 1990 "... I feel that the majority of this lady's symptoms are likely to be permanent."

It is reasonably clear that no medical practitioner envisaged the series of operations the applicant has undergone nor the prospects of a lower leg amputation.

In these circumstances it appears to me that this case is one where it is appropriate to reconsider the earlier award for pain and suffering. It is clear that the results of the injury have been catastrophic so far as the applicant is concerned. Her evidence was given without embellishment and indeed one can only wonder at the resilience and courage of people such as the applicant in coping with their disabilities.

In my view this is a most extreme case and I award an additional $12,600 under section 67.

So far as apportionment of the sum under section 67 concerned it would appear in the light of LEXINGTON CONSTRUCTIONS PTY LTD v. COYNE (1992) 8 NSWCCR 625 that it is not necessary to make an apportionment in respect of pain and suffering to date and for the future. Accordingly I do not do so.

So far as interest is concerned I again refer to Coyne's case where under the heading "Entitlement to interest" at 629 Kirby P sets out clearly and succinctly the principles involved.

Accordingly I order the respondent to pay interest on the additional lump sums under section 66 and 67 from 12 May 1992 to date at the rate of 6 per cent per annum.

Respondent to pay the applicant's costs in accordance with Part 29.

Solicitors for the applicant: Bingham, Finlay, Turnell & Corah

Solicitors for the respondent: R. Guthrie