Selimovic v Airfoil Registers (Sales) Pty Ltd [1999] NSWCC 29; (1999) 18 NSWCCR 143 (8 June 1999)

Last Updated: 25 April 2000

[1999] NSWCC 29; (1999) 18 NSWCCR 143

SELIMOVIC v AIRFOIL REGISTERS (SALES) PTY LTD

[1999] NSWCC 29

Compensation Court of New South Wales: Armitage J

8 June 1999

Workers compensation - Assessment of compensation - Lump sum payments - Pain and suffering - Surgery required for injured arm - Post-operative ingestion of prescribed analgesics result in serious stomach problems requiring stomach surgery - Consequential pain and suffering - Included in award for pain and suffering resulting from permanent loss - Workers Compensation Act 1987 (NSW), s 65, s 67

B. Slowgrove, for the applicant

I.W. Raine, for the respondent

Ex tempore

1 ARMITAGE J: This is an application by Adam Selimovic against his former employer, Airfoil Registers (Sales) Pty Ltd, in which he alleges that, on 13 November 1996 at the respondent's premises, he was spraying an insulating substance into air-conditioning boxes and tripped over a hose and fell into a steel box, such that his hand went inside and the side of his arm became caught on the side of the box and was ripped open. In consequence, he claims injury both to his right arm and to his bowels due to medication taken for the arm, and in consequence claims the appropriate lump sums under s 66 of the Workers Compensation Act 1987 for 60 per cent permanent loss of use of the right arm below the elbow and 10 per cent permanent loss of bowel function. A s 67 lump sum for pain and suffering is also claimed, together with s 60 expenses and interest on all sums claimed.

2 The claim for s 60 expenses for medical and hospital treatment was not the subject of medical or lay evidence, and there is no suggestion that any such expenses remain unpaid, so I propose to make no award in that respect, there being apparently no issue between the parties in relation to s 60 expenses, but simply to reserve liberty to apply in the event of any such dispute breaking out in the future in order to obviate the expense to the parties of a fresh application for determination simply to claim s 60 expenses.

3 The issues were kindly delineated in a manner for which I am grateful by the respondent's counsel, Mr Raine, at the commencement of proceedings as being firstly permanent loss, secondly the nexus or causal connection between the permanent loss of bowel function claimed and the injury, and thirdly the application of s 68A, but as the argument developed, Mr Raine made a submission that pain and suffering resulting from the condition of the applicant's bowels and stomach as a result of ingestion of medication for the injury was not the proper subject of any s 67 award I might otherwise make in respect of pain and suffering resulting from any loss I might find the applicant to have sustained resulting from the injury. Hence there was a nexus dispute, if I may so put it, in relation to the applicant's s 67 entitlements as well, should they arise.

4 The applicant gave evidence, and I have no hesitation in indicating that he struck me as a witness of truth. He gave, in the main, a sensible and moderate account of his injuries and disabilities and I accept his evidence on all relevant issues. He seemed to me somewhat emotionally preoccupied with his injuries, but given his surgical history following them that is perhaps not surprising, and I did not think that this impression should affect his credit.

5 The applicant was born on 9 November 1968 and is therefore 30 years of age. He is a relatively young man and that ought to have some implications in the s 67 award I make in this case. He is married and has a dependent son. He joined the respondent in December 1996. His work in air conditioning seems to have involved relatively vigorous use of both hands. On 13 November 1996 he suffered the subject injury much in the manner which I have related above, which comes from the description of the injury in the application for determination. It was necessary for him to have 40 stitches in the right arm at a medical centre as a result of the injury, as a result of which he suffers scarring, which is no part of the present claim. I observe in passing that an attempt was made by the applicant through his counsel to amend the application at the heel of the hunt, just before addresses, to claim a s 66 lump sum for scarring in respect of scarring to the applicant's stomach as a result of surgery, to which I shall come later. I refused that application for reasons I directed be recorded on today's transcript, and which therefore required no further elucidation.

6 The 40 stitches to which I have referred were undertaken at a medical centre which the applicant visited immediately after the injury. However, it was necessary for him to be referred to a Dr Biggs at a later time to investigate what was thought to be ulnar nerve entrapment following the injury. The applicant described that stitching process as painless in itself, because he had been given a local anaesthetic shortly before the stitches were inserted, but he said he was in excruciating pain in consequence of the injury. He said that two hours after the stitches had been inserted, a Dr Ayscough at the same medical centre rebandaged the wound. He also said that the arm was painful to a considerable degree when the anaesthetic wore off. He said that when the stitches were ultimately removed, that process in itself was also painless, although no local anaesthetic was administered.

7 The applicant also described himself at the time of the original injury as being sick, nauseous and giddy and in a lot of shock following the severe cut to his arm sustained in the original injury. He said he wrapped his arm in a T-shirt at the time of the injury with the assistance of a fellow employee, and that it was difficult to keep the arm wrapped in this fashion before he came under the treatment of the medical centre. He also said that there was a great deal of blood about at the time of the injury and that this too upset him. He said that he was not given an anaesthetic straight away by the doctor at the medical centre, and that that doctor wanted to examine the arm first, and that while he was waiting for the anaesthetic during this process, he felt giddy and sick in consequence of the pain he was then suffering. He said it was necessary for the medical centre doctor to administer not one but several anaesthetic injections before the pain he was then suffering was effectively relieved.

8 The applicant said that after he left the surgery following the insertion of the original stitches, as I have said, that the arm was quite sore when the anaesthetic wore off. He said that in consequence he re-attended the medical centre that night and saw Dr Ayscough of that surgery for the first time, and was at that time given a tetanus shot by that doctor and had the wound rebandaged, this occurring at nearly 6.00 pm on the date of the injury. He said that the changing of the bandages by Dr Ayscough was a particularly painful process. He said he did not sleep well that night, and took Panadeine Forte as he already had some of that medication at home. He said that the bandages were changed three or four days after the injury, again by Dr Ayscough, and that this process also was painful. He said that he was not sleeping well during this period but rather on and off. He said that after the New Year, that is to say in early January 1997, he thought he was referred to Dr Biggs, a neurosurgeon, by Dr Ayscough, and that Dr Biggs "reopened the arm", as he put it, in February 1997. I shall come to that surgery when dealing with the report of Dr Biggs.

9 He said also that Dr Ayscough referred him for an EMG test, no doubt in order to test ulnar nerve function. He said that Dr Biggs performed the operation following this test being carried out, and that in the operation new stitching of the arm took place and the arm was again bandaged. He said that he was prescribed Feldene by Dr Biggs after Dr Biggs's surgery to alleviate the loss of nerve function, which had been found, I gather, by EMG testing. He said that in following the prescription of Feldene in June 1997 he began to develop stomach problems. He said in his evidence in chief that he had no stomach problems before the occurrence of the original injury in November 1997, but that appears to be mistaken because of some cross-examination on the issue to which I shall come later.

10 He then gave evidence that Dr Ayscough prescribed the Feldene after Dr Biggs's operation. I am uncertain, in view of the applicant's self-contradiction in this respect, whether it was Dr Ayscough or Dr Biggs who prescribed the Feldene following the operation, but one way or the other the prescription of Feldene would appear to have occurred following the operation for pain relief, as is not contested by either party in submissions.

11 The applicant was eventually referred for the stomach problems to a Dr Merrett, a gastrointestinal surgeon, to whose report I shall come later. Ultimately he came to surgery in June 1997 at the hands of that doctor for stomach problems which he had developed as a result of his ingestion of Feldene. I shall describe that surgery in dealing with Dr Merrett's reports. The applicant said that following the surgery, he had been and remains restricted in the food that he can eat, in that he is unable to eat greasy or creamy foods or foods containing herbs and spices, and suffers from loose stools and the necessity to visit the toilet much more often than was the case before the subject injuries. He said it was necessary for him to cut steak up into small pieces before he is able to digest it properly. He also suffers, he says, diarrhoea from time to time.

12 So far as his arm is concerned, he says that it is difficult for him to use it in any activity which involves strenuous use of it because he experiences pain which affects, he says, the degree to which he is able to exert himself using the affected arm. He confessed to doing some work both as a self-employed electrician and for another employer following his injuries, but said that he experienced difficulty performing this work, although he was able to do it, because of pain in the right arm below the elbow. At one stage he suggested that this pain extended above the elbow, but no claim was made for any loss of use of the right arm above the elbow, so I ought not to implement that fact in formulating the proper result in this application.

13 I had the opportunity of inspecting the applicant's right arm in court and the appearance of it was much as is set out in Dr Conrad's report of 26 August 1997, which is as follows:

Right forearm [sic] there is a "Y"-shaped laceration with the upper limbs pointing upwards in the middle of the forearm, each limb of the "Y" being approximately 7 cm long and the lower stem of the "Y" almost reaches the ulnar border of the right wrist and is approximately 8 cm long. There is marked keloid formation.

14 I do not implement the appearance of the arm to include in any s 66 or s 67 award I might make any component in respect of scarring, but merely refer to it to indicate the extent of the trauma suffered by the applicant in the original injury, as evidenced by the extent of scarring.

15 The applicant was cross-examined skilfully by Mr Raine of counsel for the respondent, and I trust I do that cross-examination no disrespect if I do not describe it in its entirety. The most significant parts related firstly, to my mind, to the applicant's arm function recently as evidenced by a film which was ultimately shown in cross-examination, and secondly to the position regarding the applicant's stomach before the subject injuries. As to the film, it was suggested to the applicant, rightly as it turned out when the film was shown, that he was able to drive a utility truck registration number TXC 405, which was his, and was able to lift a stepladder using both arms out of the back of that utility, together with a milk crate and other objects, which did not appear from the manner in which the applicant was holding them to be very heavy, and was able to do up the canvas cover on the back of the utility truck. The film was seven minutes in length, according to the respondent's counsel, Mr Raine, which appeared to me to be a correct estimate. It showed a brief slice of the applicant's life, if I may so call it, and the contents of it were not denied by the applicant when they were first put to him before the film was shown. It did not seem to me that the film contraindicated a significant loss of function in the right arm, although it did show that the applicant was able to use it in a useful occupation as an electrician, this having been his trade before he joined the respondent as a process worker.

16 The applicant was also cross-examined to suggest that he had indeed suffered from stomach problems before the subject injury, on the basis of entries in the clinical notes of Dr Ayscough's practice. It was suggested to him, as indeed the notes establish, that on 6 November 1996, the subject injury having occurred on 13 November 1996, a week later, the applicant visited Dr Ayscough complaining of nausea for three days and also vomiting and occasional loose stools for three or four days and stomach cramps. The applicant said that he recalled suffering from food poisoning at about this time, and it may be, as the applicant's counsel, Mr Slowgrove, says, that this is an adequate explanation for the attendance. Nonetheless, the applicant did deny any stomach problems before the subject injury, and this assertion is directly contradicted by the entry I have summarised from Dr Ayscough's notes. The significance of the entry in this respect is that Dr Merrett, the gastrointestinal surgeon who treated the applicant, to whose report I shall come later, does not seem to have received the history of any stomach problems whatsoever before the subject accident, and seems to have based his opinion, at least by implication as I read his reports, on the lack of such a history. This will have consequences in relation to the applicant's s 66 claim for permanent loss of bowel function and in his s 67 claim for stomach problems.

17 The applicant was also cross-examined to suggest that he is now seeing a clinical psychologist, a Mr Clancy, for stress, and also a Dr Edwards, a gastroenterologist, for stomach problems and he agreed that this was so. No report exists from either of those practitioners. It is reasonable to infer, as Mr Raine, counsel for the respondent, submits, that an inference should be drawn pursuant to the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that the evidence of these practitioners would not have positively assisted the applicant's case on the issue to which they are or may be relevant, that is, the existence or otherwise of a permanent loss of bowel function caused by the subject injuries. This too will have consequences in relation to the fate of the applicant's claim pursuant to s 66 for permanent loss of bowel function.

[At [18] to [36] his Honour considered the medical evidence and having decided that the claim for loss of bowel function had failed concluded:]

37 Doing the best I can on the applicant's own evidence, which I accept, and comparing it with the assessments I have referred to, it seems to me that the proper finding is that the applicant has a permanent loss of use of the right arm below the elbow of 15 per cent. This being so, the applicant passes the s 67 threshold in s 67(2). An issue arose between the parties as to whether s 67(1A) precludes any pain and suffering compensation to the applicant under the section for his stomach problems.

38 To analyse the respondent's submission in this respect, it is necessary to look at what the law was preceding the enactment of s 67(1A) by Act No. 89 of 1995, to which I shall refer in a moment. Some controversy apparently existed in the Compensation Court following the enactment of s 67 as to whether it permitted compensation for the whole of the effects of an injury or only for the effects of a loss suffered by an injury, notwithstanding what one would have thought were the clear terms of s 67(1), which provides that if a worker suffers a loss mentioned in Pt 3, Div 4 of the Act, or two or more such losses as a result of the same injury, he or she "is entitled to recover 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 the Act" a particular amount. One would have thought that the expression "resulting from the loss or all those losses" was clear in its intent, and precluded pain and suffering compensation for the whole of the effects of an injury, including effects in areas of the body not the subject of a finding by the Court of permanent impairment or loss. Nonetheless, as a result of apparently erroneous submissions by both parties in the Court below, it was necessary for the Court of Appeal to correct this Court in Glennos Constructions Pty Ltd v Beccari, NSWCA, No. 40561/91, 1 October 1993, unreported, in which this Court had awarded s 67 compensation for effects of an accident not connected with permanent losses pursuant to s 66, their Honours observing in that case that the trial miscarried for this reason, but that nevertheless the Court was obliged to award s 67 compensation only in respect of pain and suffering resulting from impairment or loss within the meaning of s 66.

39 This Court made the opposite error in Borovac v Corporate Ventures Pty Ltd (1995) 12 NSWCCR 84. When this and the preceding case were drawn to the attention of the parties by me, Mr Raine for the respondent took me to the judgment of Mahoney JA, as he then was, who was in the majority in that case, where at 91F-G his Honour observed:

But facts habitually overlap the boundaries which concepts seek to apply. As I have indicated, "impairment" comprehends not only the physical change produced by the injury in question but also the state of impairment which results from that injury. This is of significance for present purposes. Thus, if there is a permanent state of impairment and pain and suffering results from the impairment, a s 67 award may be made in respect of that pain and suffering, notwithstanding that from time to time it may have been produced by one physical effect of the injury and at another time by another, neither of which is permanent.

40 At 92A-B his Honour went on:

If the state of impairment be permanent, even though it results for a time from one and for a time from another incident of the injury, then, in my opinion, the pain and suffering which results from the impairment is (special cases apart) within s 67. For this purpose, in my opinion, pain and suffering will result from the condition, physical or otherwise, which produces that impairment.

41 Mr Raine, for the respondent, then took me to s 67(1A) which, as I have said, was inserted by Act No. 89 of 1995, the WorkCover Legislation Amendment Act. This reads:

Because there is a distinction between injury and loss resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss. (Emphasis added.)

42 Mr Raine urges that this subsection was intended to overrule the effect of Borovac's case to which I have referred. He says that the words in the subsection "pain and suffering which results from the injury but not from the loss" cover the pain and suffering suffered by the applicant in this case as a result of his ingestion of Feldene and his subsequent stomach surgery to alleviate the effects of such ingestion. He also says that the pain and suffering suffered by the applicant at the time of the original injury for which Feldene was administered was pain and suffering resulting from the injury and not from the loss. Thus, he says, the applicant is not entitled to pain and suffering compensation under s 67 for either of these matters because of the effect of s 67(1A).

43 He also makes the submission formally, I being bound by it, that Borovac's case is wrongly decided and I note that submission.

44 I obtained for the benefit of the parties the explanatory note to the original Bill which, after amendments in the Legislative Council, became Act No. 89 of 1995, and the Second Reading Speech of the Attorney-General, the Hon. J.W. Shaw QC, MP, in the Legislative Council on 13 December 1995 to that Bill, (see Hansard 13 December 1995, at 4775 - 8).

45 The explanatory note, to which reference is permissible under the Interpretation Act 1987, makes the observation in par (b) on page 1:

It is made clear that lump sum workers compensation for pain and suffering is limited to pain and suffering resulting from permanent disability and does not extent to other pain and suffering resulting from work injury.

46 Referring to the proposed s 67(1A), the Second Reading Speech at 4776 comments:

Another item in the bill which is in the nature of clarification concerns assessment of the lump sum pain and suffering under s 67 of the Act.

The proposed amendment reinforces that that entitlement is confined to "the permanent loss" resulting from a worker's injury, rather than encompassing other effects of the injury.

47 Mr Raine, when these references were drawn to his attention by me, contended they supported his submission that s 67(1A) represented a legislative reversal of the effect of Borovac's case, so that, he said, the pain and suffering experienced by the applicant in this case resulted from his injury and not from his loss as found by me. I do not agree. The expression "reinforces" in the quotation from the Second Reading Speech set out above suggests that all that was intended by the legislature was a reaffirmation of the existing law, and similarly the expression "it is made clear" in the explanatory memorandum seems to me to have the same effect. Mr Raine took me to the transitional provisions in relation to the 1995 legislation, inserted as Sch 6, Pt 6, cl 10 of the Act, reading:

Section 67(1A) (which was inserted by the WorkCover Legislation Amendment Act 1995) is inserted for the purpose of avoiding doubt and accordingly that subsection is taken to have been so inserted from the commencement of that Act, but not so as to affect any decision of a court made before the commencement of the subsection or any compensation that a worker has received or agreed to receive before that commencement.

48 He says that the expression "for the avoidance of doubt" suggests that doubt existed beforehand as a result of Borovac's case as to the proper interpretation of s 67 in the respects I have enumerated, and that for that reason, the legislation is to be taken as having reversed the effect of Borovac's case by the insertion of s 67(1A). Again I do not agree. It seems to me that the expression "for the purpose of avoiding doubt" suggests that all that is intended is a "reinforcement", as the Attorney-General put it in his Second Reading Speech, of the effect of the existing law, rather than a reversal of it.

49 Mr Raine urges that the 1995 legislation referred to above is not beneficial legislation and should be given full effect and not interpreted against the beneficiary of it, namely the employer in this case. I do not suggest the contrary, but the fact is that, like any other legislative enactment, the Act must be given effect only to the extent that it achieves the legislative object which it was apparently intended to effect. The rules of statutory interpretation in relation to the taking away of existing rights as set out authoritatively in the judgment of Kirby P (as he then was) in Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 at 289 - 290 seem to me to be apposite. The matters to which Kirby P referred there do not have precise application in this case because the applicant's accident occurred after the enactment of the 1995 legislation, but the general approach his Honour takes to the removal of existing rights under a beneficial statute seems to me nevertheless to be apposite. In Borovac's case itself, Mahoney JA observed that the Workers Compensation Act 1987 itself is beneficial and a remedial Act and should be construed beneficially (see at 89E and the authorities there cited). There is no doubt that the 1989 legislation to which I have referred was, as the Second Reading Speech to which I have already referred suggests, enacted to contain workers compensation costs and was not beneficial in intent, in that it did not confer rights but rather took them away. There is an argument that the Workers Compensation Act 1987 itself was intended, as the Second Reading Speech, as I recall it, suggested at the time of its enactment, to contain workers compensation costs and perhaps to affect existing entitlements under the Workers Compensation Act 1926 deleteriously. Nevertheless, it seems proper to follow the authoritative observations of Mahoney JA in Borovac's case, which are part of the ratio, where his Honour held that the present statute itself is beneficial, even if the 1989 legislation is not, and to construe reasonably strictly any enactment such as the 1989 legislation taking away rights already conferred under the 1987 legislation. I also adopt with respect what was said by Mason P in Registrar-General v Harris (1998) 45 NSWLR 404 at 417, where his Honour in turn adopted what was said by Lord Reid in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591 at 613, where his Lordship said:

We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant, but the true meaning of what they said.

50 The result of s 67(1A) as inserted by the 1989 legislation seems to me to be as Mr Slowgrove submits, contrary to Mr Raine's submission, simply to codify, or to use the words of the Attorney-General in the Second Reading Speech above quoted, to "reinforce" the existing law, which as I have said one would have thought was clear from s 67(1) as enacted in 1987 in the original Act, namely that pain and suffering had to result from a loss and not from an injury before it was compensable.

51 The pain and suffering suffered by the applicant as a result of his stomach condition and the subsequent surgery, and the stomach complaints with which he is left, seem to me to result quite plainly from the s 66 loss he suffers. As Mr Slowgrove submits, if Borovac's case is still good law, and I think it is for reasons set out above, the loss impacts as soon as the injury is suffered even it is later assessed, and pain and suffering experienced before the assessment of the loss, but after the injury causing the loss is suffered, is still compensable pursuant to s 67, provided always that the pain and suffering results from the loss and not from injury to some other part of the body suffered at the same time as the injury to the affected part resulting in the loss.

52 As is made clear by Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, the chain of causation is not broken by negligent medical treatment as a result of an injury. I am not suggesting for one moment that Dr Merrett's medical treatment was negligent, nor that it was not necessitated by the applicant's stomach problems, but the fact is that it was undertaken for stomach problems which were the direct result of analgesics ingested for pain resulting in turn from the applicant's right arm injury. Thus it is clear that the surgery and its effects result from the pain the applicant was suffering as a result of his original right arm injury, in that he was prescribed Feldene to alleviate that pain. In what, one is entitled to ask, does the applicant's loss consist? It consists in, I think, the symptoms which result in a day by day loss of use of the affected limb, as is suggested in Department of Public Works v Morrow (1986) 5 NSWLR 166. In so far as the pain the applicant suffered from as a result of the right arm injury is evidence of loss of use of that limb, this being permanent in the opinion of the applicant's doctors, which I have accepted, it is proper to conclude that the Feldene treatment afforded to the applicant, and which resulted in his stomach problems, was treatment of the loss suffered by him in the original injury and not simply of the injury itself.

53 One might ask by way of analogy, as I put to counsel in argument, whether skin irritation as a result of the application of a calliper to alleviate a loss of use of a leg would be pain and suffering resulting from the loss of use of the leg. One would have thought that it would be, because the use of the calliper was directed at alleviating the loss of use of the leg. Similarly, one would have thought, the Feldene in this case was directed at alleviating the pain in the applicant's right arm, which was an element of the loss of use in that limb which is the subject of my finding under s 66. In those circumstances there seems to me to be a direct causal connection between the applicant's ingestion of Feldene and his subsequent stomach problems and surgery and the problems experienced after that surgery in his stomach and the original loss of use of the right arm, and those matters therefore seem to me to be a proper subject of compensation under s 67. I do not think they would properly result from a permanent loss of bowel function, had such been proved, because, as Mr Raine correctly submitted in that issue, the stomach is not part of the bowel.

54 I have already set out in my summary of the applicant's evidence how his day by day life is affected both by his stomach problems and by his right arm problems, and I shall not repeat what I said there. On one hand, the applicant is a relatively young man, who will have his right arm problems for the rest of his life (and I do not by any means find that his stomach problems will endure for his lifetime, but as they are pain and suffering resulting from his loss of use of the right arm, in my view, and they are the proper subject of s 67 compensation). On the other hand, it is to be observed that his injuries are many times less severe than often seen in this Court in severe back injuries and the like. Balancing those matters, it seems proper to award the applicant pain and suffering in compensation on the basis of 1:4 or 25 per cent of a most extreme case.

55 Mr Raine argued that s 68A was applicable if I found a permanent loss of bowel function in the applicant pursuant to s 66. As I have not made any such finding, I do not propose to consider the section in relation to such a loss, except to observe that I have taken into account in my s 67 findings, so far as it concerns stomach pain, that the applicant was not without stomach problems before the subject accident. I was not asked to apply s 68A in respect of any alleged pre-existing injury, condition or impairment which may have caused the applicant's right arm loss as well as the subject injury, and it is not necessary therefore to consider the application of the section in relation to the right arm loss.

56 I was asked by the respondent's counsel, Mr Raine, in case the matter goes elsewhere, to assess the pain and suffering compensation that would have been appropriate had no pain and suffering compensation been available to the applicant in respect of his ingestion of Feldene and the stomach problems resulting from it. Had I been unable to consider those matters, in my view, I would have awarded pain and suffering compensation on the basis of 1:5 or 20 per cent of a most extreme case.

57 It is pointed out to me by Mr Slowgrove, for the applicant, that at the commencement of proceedings the application for determination originally contained a claim for weekly payments of compensation. Mr Slowgrove says, as is indeed the case, that the respondent through its counsel Mr Raine agreed to the present s 66 and s 67 claim proceeding, provided that the claim for weekly payments did not. For that reason, I invited Mr Slowgrove to delete the claim for weekly payments from the application for determination and this was done by agreement. This does not fetter any future judicial officer in relation to the question of costs on any claim for weekly payments, but at Mr Slowgrove's request, I note the correct situation.

58 I make the following findings:

1. Injury to applicant arising out of and in course of employment of respondent on 13 November 1995.

2. Resulting from such injury, applicant has 15 per cent permanent loss of use of right dominant arm below the elbow.

3. Resulting from such loss, applicant has experienced and does and will experience pain and suffering of a proportion of 1:4 or 25 per cent of a most extreme case.

59 I make the following awards in the applicant's favour:

1. $11,250 under s 66 for 15 per cent permanent loss of use of right dominant arm below elbow.

2. $12,500 under s 67 for pain and suffering.

3. Liberty to either party to apply on seven days notice as to s 60 expenses, or under s 66 as to permanent loss of bowel function.

4. Respondent to pay applicant's costs. I recommend such costs include second conference fee for counsel at $200.

60 The respondent at this point seeks a stay of proceedings for 28 days in respect of such portion of such portion of my s 67 award as relates to pain and suffering resulting from the applicant's stomach problems, which I have found resulted from treatment of the right arm affected by the original injury and therefore of the loss in it which I have found. There being no opposition from Mr Slowgrove for the applicant, I grant this stay, and Mr Raine points out that the sum involved is $2,500, having regard to the assessment I have indicated above as to the pain and suffering award I would have made, had I been unable to consider the applicant's stomach problems and their sequelae. I therefore grant the respondent a stay of proceedings for 28 days in respect of the sum of $2,500 being part of my s 67 award announced previously.

Orders accordingly

Solicitors for the applicant: HC Stathis & Co

Solicitors for the respondent: PW Turk & Associates