GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v PANTELIS [1992] NSWCA 89

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v PANTELIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 26 March 1992, 26 March 1992 [1992] NSWCA 89

WORKERS COMPENSATION — APPEAL — NEGLIGENCE WORKERS COMPENSATION — frank injury to employee — negligence of employer — tortious injury overtaken by disease — employer continued compensation payments after closed period — whether additional compensation to be deducted from damages — whether further incapacity due to compensable progressive injury. APPEAL — new point of law raised on appeal — point might have met by evidence at trial — not allowed to be raised. NEGLIGENCE — employer's liability — workers compensation to be deducted from damages — whether one compensable injury or two.

In 1983 the plaintiff sustained a frank injury at work due to the negligence of the defendant. The injury aggravated and accelerated an underlying degenerative disease. The trial judge held that the tortious injury had been overtaken by the progress of the disease and awarded damages for a closed period. He allowed the defence under s63(5) of the Workers Compensation Act in respect of compensation benefits for the closed period but without objection from the defendant did not deduct further compensation paid after the closed period. The question whether the plaintiff may have suffered a progressive injury which was also compensable was not litigated at the trial. On appeal the defendant sought to argue that under s63(5) it was entitled to deduct compensation paid after the closed period. HELD: The point of law might have been met by evidence at the trial and therefore could not be entertained for the first time on appeal.

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CLR | applied.

ORDER