Monty v Director-General of School Education [1996] NSWCC 19; (1996) 13 NSWCCR 207 (11 June 1996)

[1996] NSWCC 19; (1996) 13 NSWCCR 207

MONTY v. DIRECTOR-GENERAL OF SCHOOL EDUCATION

Compensation Court of New South Wales: Armitage J

11 June 1996

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS FOR SPECIFIC INJURIES - LOSS OF THE POWER OF SPEECH - DOES NOT INCLUDE LOSS OF POWER TO SING - WORKERS COMPENSATION ACT 1987, SECTION 66 AND TABLE TO DIVISION 4 OF PART 3

ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS FOR SPECIFIC INJURIES - LOSS OF THE POWER OF SPEECH - PAIN AND SUFFERING - DOES NOT INCLUDE DISAPPOINTMENT FROM INABILITY TO SING IN CHOIR OR TEACH SINGING - WORKERS COMPENSATION ACT 1987, SECTION 67

K.L. Fraser, for the applicant

C. Pitts (solicitor), for the respondent

Ex tempore

ARMITAGE J: This is an application for compensation by Joan Monty against the Director-General of School Education in which she claims a lump sum pursuant to section 66 of the Workers Compensation Act 1987 of $19,380 in respect of 25 per cent loss of the power of speech and a consequent lump sum pursuant to section 67 for pain and suffering together with appropriate interest on both sums in respect of injuries said to have occurred in circumstances arising out of or in the course of her employment with the respondent as a teacher, over which period of employment it is said that the nature and conditions of her employment involved excessive use of her voice.

The application was amended at the commencement of proceedings, firstly by my granting leave to the applicant without objection from the respondent to rely on an amended application for determination filed on 3 May last and secondly, by deleting any claim to weekly payments in that application and by substituting the appropriate lump sum for 25 per cent loss of the power of speech for the claim initially mounted in that amended application for the appropriate lump sum for 70 per cent loss of the power of speech.

I should mention in passing that it was indicated when the matter was called over in Armidale before me on 7 June last that the respondent was unready to meet a claim for 70 per cent loss of the power of speech, this being mounted on the strength of estimates made in a report from a Dr Havas dated 2 January last, which eventually became an exhibit in the proceedings and to which I shall come later, whereupon the applicant, by her counsel Ms Fraser, indicated that she did not press a sum higher than 25 per cent loss of the power of the speech on a permanent basis and amended her application accordingly, whereupon the respondent, through its solicitor Miss Pitts who appeared for it, indicated that it was ready to meet that claim, as distinct from the previous claim for 70 per cent loss of the power of speech.

Miss Pitts defined the issues economically, in a manner for which I am grateful, as being firstly, the date of injury for purposes of calculation of the appropriate section 66 and (if applicable) section 67 sums and secondly, the quantum of the applicant's section 66 entitlement and (if any) her section 67 entitlement.

The applicant gave evidence and, as I indicated to counsel in addresses, she struck me as an honest woman who did her best to describe her symptoms and disabilities accurately and I thought without exaggeration and I accept her evidence on all relevant issues. She said that she was born on 5 April 1937 and started teaching initially in 1957 and taught at various locations until she came to teach in the Armidale area in 1982 and has taught there ever since.

She apparently had no voice problems until 1977 or 1978 when she was, I gather, teaching at Narrandera and experienced some croakiness in her voice and sought specialist attention at Leeton. Her main concern, she said, at that time was that she had cancer, although she later conceded that some tests were undertaken at that time, but at all events she seems to have experienced no further significant problems with her voice, at least on her evidence which I accept, until she came to Armidale.

She taught at Uralla, which is near Armidale, between 1982 and 1986 for two days per week initially and later four days per week for one year. She was at that time, as she had been for a number of years, a music teacher. She experienced no voice problems at that time. In 1987 she went to Ben Venue Primary School in Armidale for one day per week teaching music, and at the same time she did casual work in the Armidale public school system, again teaching music. She then increased her work load to four days per week at three schools, namely Ben Venue Primary School earlier mentioned and Bald Blair Primary School and Newling Primary School and in all locations she was teaching music. She noticed at that time that her speaking voice was croaky, but that her singing voice was unaffected except to the extent that it sometimes failed when she was singing in a choir, which I gather was outside her teaching obligations.

She said that by the beginning of 1990 she was working two and a half days per week at Newling Primary School and two and a half days per week at Ben Venue and that she was teaching music only at Ben Venue and partly "health" at Newling. She said that with primary school students she was "active all the time" and that she "never did any writing". She said the system she used was the "Kodaly", named after the well-known Hungarian composer, whereby she did a lot of singing and in fact, in a way that enlivened my otherwise fairly routine day, she demonstrated in the course of her evidence the manner in which she would sing "hello" to the children using, I thought, a three note greeting consisting of a C, then an F, then a D. The children, as she demonstrated, would then sing a reply to her.

I should mention that the demonstration the applicant gave of her singing voice in court on this occasion appeared to me to demonstrate a degree of "croakiness", if I may so call it, as did her speaking voice in the course of her evidence. It is more than usually appropriate to say, as courts customarily do, that I heard as well as saw the applicant and that my understanding of the evidence was increased by that, although, of course, I have not gone outside the applicant's oral evidence and the various forms of documentary evidence put before me, including the medical evidence, in forming a view as to the applicant's entitlements in this case.

She said that the children used such instruments as glockenspiels, xylophones and percussion and that it was on occasions necessary to sing over the noise made by those instruments. She said that at Ben Venue and Newling Primary Schools she took the school choir, which put more pressure on her voice in that she had to demonstrate two- part songs to the children and in particular tried to help with the alto part, which was her own natural vocal range, by singing the part required to be sung by the children. She said that she had loved singing all her life, including singing hymns with her mother. She said that she organised choirs in smaller places where she had taught at times and that she could not do that now because her voice was insufficiently strong. She said that she was embarrassed when demonstrating vocal parts to school choirs now.

She said that in 1990 she initially sought attention from Dr Connor, her general practitioner, about her voice which was then croaky and that she was in due course referred by him to a Dr MacArthur, an ear, nose and throat specialist in Armidale in July 1990. Initially she received no treatment, but was told to rest her voice as much as possible in the July vacation, which she did. She said that her voice improved slightly after the vacation at school but was still croaky and that, customarily, it improved at weekends. She added at this point that she had never smoked.

She continued to teach over the years 1990 and 1991 and by 1992 was still carrying the same teaching load, but was obliged to give up her participation in a choir in the Armidale area at the end of 1992. This, she said, was conducted by the Armidale Choral Society. She said that at the time she gave this up her voice was failing in the middle register.

She went to Dr Connor in mid-1993 for further medical treatment and later indicated that this was perhaps earlier, for in May 1993 she was again seen by Dr MacArthur who advised surgery. On 26 June 1993, she came to an operation at the hands of Dr MacArthur, the nature of which I shall discuss when dealing with his reports which are in evidence.

She said that her voice problems continued until the date of the operation, in that in particular she could not sing at all in the middle register for the last few weeks before the operation. After surgery in June 1993 she was told not to speak at all for three weeks, which she said was difficult, and said that during that time she wrote communications to other people and whispered at times. She said that after three weeks from the surgery when she started speaking again on a regular basis, her voice was "dreadful" and very hesitant and unclear and that she could not communicate very easily.

She was off work until the end of 1994 with her voice problems and paid compensation. She did not sing at all until November or December 1994. Her speaking voice during that time was very croaky, although she said it was improving with time. She gave up one of the schools where she was teaching and continued to teach for two days per week at Ben Venue where she taught music only and has been there ever since. She then corrected her evidence and said that in fact she was off work only until the end of 1993 and not 1994 following the surgery, this having taken place as indicated earlier on 23 June 1993 and that it was for this period for which she was paid compensation.

She said that she had been offered work at two other schools but had not been able to take it up because she felt that her voice could not cope. She says now that she experiences great trouble talking to an assembly of 200 students and in gaining the attention of a large group of children. She says that she has trouble teaching choir because of a lack of volume in her singing voice at school. She says she is not able to sing privately with the Armidale Choral Society and has been unable to do so since the operation. She says that she is not able to take part in choral work at the church to which she belongs and does not feel able to take up positions as president or secretary of various organisations to which she belongs because of the quality of her voice at meetings.

She says that she was the president of the Armidale Netball Association for three years and previously took meetings and spoke through a microphone on occasions, but conceded that she left that activity before the end of 1989 which seems to have been before she developed the very significant voice problems which led to her surgery. She also said that she had been a member for some time of the local garden club and felt unable to be president or secretary of that organisation because of her inability either to run a meeting or read minutes to a group of people. She said that she was sad about her inability to be involved in the church choir at the church which she attends because music was "the love of my life".

She said that she now taught children singing by giving them a tape to take home because she was not able to sing the part to them as well as she would like. She complained that her laugh sounded different from the way it had been before her voice problems developed. She said that she coughed more than she used to and phlegm production made her voice worse, especially in the morning. She said people ask if she has a cold and that this embarrasses her and that it happens a lot. She said that she carried water to classes and tried to keep drinking to help her voice quality.

She was cross-examined in a capable and searching fashion by Miss Pitts, the solicitor who appeared for the respondent, and I trust I do no disservice to her cross-examination by referring only to those portions of it which appeared to me to be particularly salient in the determination of the applicant's rights.

One significant matter which she elicited was that the applicant had seen a Dr Scoppa in 1995 for her own solicitors. No report from Dr Scoppa was forthcoming and no explanation was offered by the applicant for his absence through her legal representatives and it is reasonable to draw an inference pursuant to the principles in Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 that Dr Scoppa's evidence would not have assisted the applicant's case and I take that inference into account when determining the applicant's rights, as I shall do later in this judgment.

She conceded that in 1978 she had had allergy tests in relation to dust and other substances in Leeton as a result of the huskiness in her voice, these tests seem to have been inconclusive. She also conceded that she had a concurrent gastric reflux problem which consisted of a burning sensation in her throat, but could not remember exactly how long she had had it. She also conceded that she had had indigestion for some time. She conceded that these problems could have afflicted her as early as 1982 when she came to Armidale. She conceded that she was on a special diet for the gastric reflux, including no alcohol or caffeine or aerated drinks and that this had been the case since the condition was diagnosed, although she could not say exactly when that was. She said that it resulted in a feeling of food coming into her mouth, up from her stomach, and phlegm appearing behind her nose. She said that she experienced gastric reflux more commonly after a big meal and that she was not necessarily doing a lot of talking when the symptoms came on, in her experience.

I shall, when considering the applicant's entitlement to pain and suffering in respect of the loss which I propose to find, consider also that the applicant has a concurrent non-work-related gastric reflux problem and will take that into account when determining the size of the sum I propose to award in relation to pain and suffering.

The applicant also conceded that she had had speech therapy which had been very helpful and that she had been grateful for it and that it "enriched her voice" as she put it. She also conceded that at Newling she taught physical education as a component of the health teaching she did at that school and less of that at Bald Blair Primary School, but asserted that that too involved projecting her voice. She said in response to a question in cross-examination that she was now teaching only two days per week and that her voice was only just coping with that. She said that she took medication for the gastric reflux condition and had done so since 1993 and that a new prescription offered her two months ago for that condition had made a miraculous difference to the gastric reflux condition, but that her voice remained unchanged.

She conceded that she had endured the present problems she is having with her voice since 1991 and that this had started possibly as early as 1978. She conceded that she had been coaching children for an eisteddfod until the week before the hearing at Ben Venue and that this had involved extra work.

It was agreed between the parties that notice of the applicant's claim was given to the respondent stating the date of injury as being 5 May 1993 and the applicant, by her counsel, indicated that the lump sums she claimed had been calculated as at that date.

[His Honour then considered the medical evidence and continued - Ed]

Doing the best I can on the whole of the evidence both medical and lay, the proper course seems to me to find that the applicant has a 20 per cent loss of the power of speech. That might also be expressed, although I apprehend it is not necessary for the purposes of the Act, as a 20 per cent or 1:5 loss of the power of speech as compared to "a most extreme case".

I have, in coming to that estimate, implemented to a large extent the views of the treating doctors, Drs Havas and MacArthur, for reasons I have already given, but I cannot ignore, as it seems to me, the impression I gained of the applicant's voice when she was giving her evidence and in her short demonstration of singing, which suggested to me that her ability to speak was a little better than was described in the reports of Drs Havas and MacArthur, though not much. I have also implemented, when coming to the percentage set out above, the inference which much be drawn in relation to the absence of Dr Scoppa from the applicant's case to which I have already referred.

I have also taken into account when assessing the applicant's entitlements pursuant to section 66 that the Table item pursuant to section 66 is for loss of the power of speech; it is not in respect of the loss of the voice, or of the power of singing, or inability to sing. I can find no authority on this point, but "speech" is defined in the Concise Oxford Dictionary as the "faculty of speaking" or the "act of speaking". Had the legislature intended to prescribe a table item for "loss of voice", it could have done so. It is the applicant's ability to speak therefore that must be assessed, and if there is a loss of the power of speech as distinct from the power of singing, what must be assessed is whether or not it is permanent. I have come to the view that there is such a loss and that it is permanent but I have not, in so doing, taken into account the vocal difficulties, to use a neutral expression, of which the applicant complains so far as her singing voice is concerned.

Similarly, when considering her rights under section 67 it must be kept in mind that if she passes the relevant threshold in section 67(2) (as she does if I find, as I have, that has a 20 per cent loss of the power of speech on a permanent basis) I may only include, in her section 67 entitlements, compensation for pain and suffering resulting from the loss of the power of speech. It seems to me in those circumstances that I must not take into account when considering her section 67 entitlement her inability to sing. It is true that that has caused her considerable embarrassment and I have the utmost sympathy for her in that respect, but I cannot take into account in assessing her section 67 entitlement something which the Act does not allow me to do, and for that reason I do not do so.

I must also consider, pursuant to the principles set out by the Court of Appeal in Alvorac General Engineering Pty Ltd v. Arlotta (1993) 29 NSWLR 734, the proper discretionary margin within which I may come to a section 67 assessment and must exclude, consonant with what was said by Mahoney JA in that case at 736 (in which I apprehend the rest of the Court agreed with him), disappointment at the loss of a pursuit and similar matters; one must only consider "pain" or "distress" as defined by section 67 itself when assessing the applicant's entitlement.

It seems to me that approaching the matter that way, and excluding the applicant's singing as distinct from speech impairment, and excluding the disappointment she no doubt feels as a result of her inability to sing in a private choir and teach more often than she does, and taking into account only the pain and distress she suffers as a result of her loss of voice, which is after all nevertheless permanent and very embarrassing and distressing, according to her evidence which I accept, that the appropriate level at which to fix the applicant's compensation in proportion to "a most extreme case" of pain and suffering pursuant to section 67 is also 20 per cent or 1:5.

It also seems to me appropriate to fix the applicant's section 66 and 67 entitlements, as suggested by the applicant's counsel Miss Fraser in addresses, at 5 May 1993, the reported date of injury in the notice of injury to which I have referred, and which was the subject of agreement between the parties. It seems to me that Miss Fraser could have argued that the loss occurred only following the surgery by Dr MacArthur, which was after 5 May 1993, and that indeed the section 66 and 67 entitlements should be calculated as at the date of the plateauing of the applicant's symptoms following that surgery in say December 1993, but reasonably, as it seems to me, Miss Fraser made the concession that the appropriate date was the date of notice of injury.

Miss Pitts, as I apprehend in her submission, suggested that the date of injury for purposes of sections 66 and 67 lump sum assessments ought to be assessed at an earlier time having regard to the fact that the applicant's voice problems extended, at least on an intermittent basis, back to 1978 or 1979, but she suggested no particular date at which such lump sums as I propose to award the applicant pursuant to sections 66 and 67 should be assessed, and indeed it was difficult from the evidence to suggest such a date, other than the date of injury as set out in the notice of injury dated 5 May 1993, which I propose to adopt for the reasons I have already set out.

I should record in passing that Miss Pitts submitted initially that Dr Carroll's assessment of the applicant's loss of the power of speech should be accepted, she submitting, as I apprehended, that Dr Seymour's views were contradicted by those of Dr Carroll and secondly, that if the view I came to was higher than that of Dr Carroll, that the applicant fell below the appropriate section 67 threshold, but that if I came to the view that the applicant fell over the section 67 threshold that the appropriate level of compensation pursuant to section 67 for the applicant was on the basis of one sixth to one fifth of a most extreme case. As it happens, I have come to the view that the top of Miss Pitts' suggested range, namely one fifth or 20 per cent of "a most extreme case", is the appropriate level of compensation for the applicant pursuant to section 67.

Miss Fraser did not dissent seriously in her submissions from my suggested assessments of 20 per cent of 1:5 in relation to both section 66 and section 67 assessments.

[His Honour then made formal findings, an award and orders not calling for report - Ed]

Solicitors for the applicant: MacMahon Drake Balding

Solicitors for the respondent: Moray & Agnew