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Pain and suffering

1987 Act Section 67>>

Dept Juvenile Justice v Edmed [2008] NSWWCCPD 6. Roche DP.

Roche DP said [38]: "On the evidence from the AMS, the second incident resulted in an impairment of only 4%. The two incidents combined have resulted in an impairment of 13%.

"To be entitled to compensation for pain and suffering a worker must establish that he or she has sustained 'an injury' (that is, one injury in either one incident or one pathology in two or more incidents) that has 'resulted in' a degree of permanent impairment of 10% or more.

"The evidence does not establish that either of Mr Edmed's incidents has, on its own, resulted in such a loss. Nor does it establish that he sustained 'the same' injury (pathology) in each incident so as to obtain the benefit of s 322(2) of the 1998 Act."

Twice broken wrist loses s67 23 WCMS 1 >>

Evans v Adams Sawmill PL [2010] NSW WCC 436 Mr Edwards, Arb, 19.10.10.

33) The Applicant can only be compensated for pain and suffering resulting from the permanent impairment and not from the injury. As Mahoney JA in Borovac v Corporate Ventures Pty Ltd, unrep CA, 08.08.95, at pp 89-90 said:

“An injury falling within the Act may produce both pain and suffering which arises from something other than the impairment of the worker’s back and pain andsuffering which results from that impairment. Section 67 authorises compensation only in respect to the latter: see Glennos Constructions Pty Ltd v Beccari, Court of Appeal, No. 40561/90, 22 September 1993, unreported.

"As to section 67 generally,see Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; Alvorac General Engineering Pty Ltd v Arlotta (1993) 29 NSWLR 734; Arklow Pty Ltd v Taavao (1992) 8 NSWCCR 269.

"Such an operation of the section may require the Court to make difficult dissections and it is possible that the result of the provision may in this regard produce artificial distinctions.

"But, in my opinion, the terms of the provisions are in this regard clear. It was no doubt apparent to the legislature that the injuries for which compensation is payable under the Act include both injuries within the Table and many kinds of injuries which are not.

"The legislature decided to limit the power to grant compensation for pain and suffering to (as far as is here relevant) injuries which fall within the Table.”

34) President Keating in NSW Police Service v Snape [2008] NSWWCCPD 89 cited with approval the approach taken by Wright C in Tyler v Marsden [2001] NSWCCR 644, referring to Tyler as a convenient summary.

35) Wright C noted in Tyler at p. 650 there are a number of factors and principles to take into account in determining an appropriate amount under section 67. These are:

a) Pain and suffering awards under section 67, unlike the objective criteria in section 66 awards for physical loss and impairment, must take into consideration the actual individual experience of the claimant, as to his or her past and future pain and suffering.

b) The measure of the extreme case must be compared with the measure of a mostextreme case and does not need to make a comparison with the most extreme case.

c) The pain and suffering must result from the loss or impairment and not merely the injury (s 67(1A)): see Scrimshaw v SAR Wood Pty Ltd [1997] 14 NSWCC 335.

d) Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date: see Selimovic v Airfoil Registers (Sales) Pty Ltd [1999] NSWCC 29.

e) Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss or impairment is crystallised: see Rico Pty Ltd v RTA (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724.

f) There is no necessary relation between the loss or impairment and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all of the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment: Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640.

g) The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestly JA at 306C) that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby ACJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.

h) Distress caused by interference with social activities Department of School Educationv Boyd (1996) 13 NSWCCR 289 or by the effects of the compensable injury on a worker’s relationships including marriage (Pacific Dunlop Ltd v Krivec [1996] NSWSC 353) can be relevant.

i) Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing there from, as well as the need for medication and difficulty with sleeping (Dubbo Base Hospital v Harvey [1996] NSWSC 545).

36) I agree with the views of Deputy President Roche in New South Wales Police Force v Cursley [2010] NSWWCCPD 66 when assessing an Applicant’s entitlement to compensation for pain and suffering.

The Deputy President said at [47]:

“Determining quantum under section 67 involves ‘in a sense, a value judgment’ (Alvorac General Engineering Pty Limited v Arolotta (1993) 29 NSWLR 734 at 739A). Its resolution involves ‘questions of fact and degree,matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment (Dell v Dalton)’ (Galley v Pasminco Mining Limited [1993] NSWCC 11; (1993) 9 NSWCCR 288 at 297).

37) I accept that the Applicant has suffered significant pain and will continue to suffer with a significant degree of pain and suffering as a result of the permanent impairment of his left upper extremity, and that the impairment has and causes the Applicant distress in that he can no longer play golf, which he enjoyed, and the pain in his left wrist affects his general daily activities and interests especially as he is left hand dominant.

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