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 Appeal dismissed with costs. Handley JA This is an appeal from a judgment of Finlay J in an industrial accident case. The plaintiff was an employee of the Sydney County Council who at the time was employed by it as a general labourer. The accident giving rise to the proceedings occurred on 20 September 1983. His Honour found that the accident and the resultant injuries to the plaintiff occurred in circumstances establishing negligence on the part of other employees of the County Council and he entered a verdict for the plaintiff. He assessed damages in the sum of $125,573. The defendant had pleaded the statutory defence under 6 63(5) of the Workers Compensation Act 1926 in respect of payments of periodical workers compensation and hospital and medical expenses prior to the trial. These totalled $171,462. His Honour found that the plaintiff, at the time of the accident on 20 September 1983 was suffering from a progressive degenerative condition, particularly in his knees, which at the time was not troubling him. It was then asymptomatic and not disabling. The injury accelerated and aggravated this pre-existing degenerative condition causing gross disability for this plaintiff. 2 UNREPORTED JUDGMENTS His Honour further found that, independently of any aggravation or acceleration produced by the injury the pre-existing degenerative condition would have continued to progress and approximately four years after the injury the plaintiff would in any event have become disabled and unable to pursue his pre-injury employment. In those circumstances he found that the plaintiff's damages were limited to this closed period of four years from the date of injury. His Honour's assessment of damages was computed on this basis. The defendant challenged one component of his Honour's verdict, and submitted that his Honour should only have awarded damages for a period of one year after the plaintiff's injury and not four. I am not satisfied that the appellant has established any error in this respect. On the contrary his Honour's judgment to my mind carries conviction on this and all other issues. It was a careful well-structured judgment in which his Honour set out clear and convincing findings and, for myself, I am satisfied that his decision on this issue was correct and should not be disturbed. The remaining ground of appeal relates to the defence under s63(5) of the Workers Compensation Act. In the end his Honour held that the defendant was only entitled to credit by way of statutory set-off against the common law verdict for so much of the workers compensation and medical expenses as were properly referable to the closed period of four years, and that it was not entitled to set off payments referable to subsequent incapacity. The parties agreed that on this basis the appropriate figure to be deducted from the verdict was $68,332. His Honour acted upon this agreement and entered judgment for the plaintiff for $57,241. His Honour was obviously troubled by the problems posed for him, and for the parties, by the fact that the plaintiff had received a verdict for $125,573 for common law damages but, by that time, had already received compensation payments and medical benefits under the Workers Compensation Act amounting to $171,462. He drew these difficulties to the attention of counsel appearing for the parties. As a result of his Honour doing so the parties reached agreement as to the amounts properly deductible under s63(5) for a three year, four year or five year closed period award of common law damages. After his Honour delivered his reserved judgment in which he found a verdict for the plaintiff for $125,573 he gave the parties a further opportunity to present argument in relation to the s63(5) defence. For that purpose he adjourned the proceedings for two days. Counsel then appearing for the parties, who are not the counsel who have appeared in this Court, indicated to his Honour on the adjourned date that they did not wish to present any argument against the entry of judgment for the plaintiff for $57,241. Accordingly, his Honour entered judgment for that figure. The defendant appealed from this judgment. The original notice of appeal, which is not in the appeal book, took no issue with the way in which his Honour dealt with the defence under s63(5). A supplementary notice of appeal was filed on 18 October 1991 which added further grounds of appeal but still did not raise any issue as to the operation of s63(5). Mr Tonner, who appeared for the appellant in this Court, sought leave to further amend the notice of appeal to add a fresh ground challenging his Honour's application of s63(5). This Court decided to grant leave to amend the notice of appeal without indicating whether it would entertain the additional ground of appeal on its merits. OVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v PANTELIS (Handle9 JA) In my opinion this Court cannot, consistently with principle and authority, permit the defendant to press the new ground of appeal. The extent to which the defence under s63(5) should succeed was a matter of agreement, or concession, on the part of counsel for the defendant at the trial. While an appellate court can permit a new question of law not taken at the trial to be raised on appeal for the first time and can allow an appeal on such a basis, care must always be taken to ensure that no procedural unfairness flows to the unsuccessful party. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 the High Court, in a joint judgment, said: "The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards." Moreover the Court cannot permit a new ground of appeal to be taken, in ordinary circumstances, where the result must be a new trial of the proceedings in whole or in part. See Coulton v Holcombe (1986) 162 CLR 1. Mr Tonner for the appellant wishes to press, through the amended ground of appeal, a submission that there should be judgment for the defendant in the action because the balance of the workers compensation payments not allowed by Finlay J, namely $125,573, exceeds the amount for which judgment was entered at the trial. The defence, as sought to be pressed on this Court, presupposes that there is but one injury which was suffered by this plaintiff, namely, the frank injury suffered on 20 September 1983. If this were true then the appellant would be entitled to succeed in its appeal and the result would be that there would be judgment for the defendant in the action. However, if the plaintiff in truth suffered two injuries - a frank injury on 20 September 1983 and a progressive injury suffered as a result of long and arduous general labouring work performed for the County Council over a period of some twenty years the situation would be quite different. In such circumstances there would be two injuries for the purposes of the Workers Compensation Act but only one of them would attract common law rights. The plaintiff could not have both damages and compensation in respect of the frank injury on 20 September 1983 but he may be entitled to damages for that injury and compensation for the other injury. Finlay J thought that there may have been another employment related injury which did not attract common law rights and he referred to this possibility at p 3 of his judgment which appears on p 203 of the appeal book. Needless to say he made no findings on that issue. Such a possibility would also explain why his Honour granted a stay of execution on the judgment on terms that the employer continued to make workers compensation payments pending the hearing of the appeal. As Ihave said if there was in this case a second compensable injury, apart from that which gave rise to common law rights, this worker may be entitled to retain compensation for the other injury as well as retain his damages for the injury on 20 September 1983. Such an issue raises complex medico-legal questions, apart from any questions of law under s63(5). The point which Mr Tonner seeks to press would either involve this Court ordering a new trial, which is foreclosed by Coulton v Holcombe or is a point which might have been answered by evidence given at the trial. Accordingly, it cannot, in my opinion, be permitted to be taken for the first time in this Court. I express no view whatever on the merits of the point in a proper case where it 4 UNREPORTED JUDGMENTS was supported by appropriate evidence and findings. However, in my opinion, the point cannot be entertained in the present proceedings at this stage of the case. I would, therefore, propose that the appeal be dismissed with costs. Kirby P I agree. I would wish to specifically align myself with the remarks which Mr Justice Handley has made concerning the judgment of Finlay J. It was accurate, painstaking, thorough and promptly delivered. In a week of damages appeals it shines the more brightly as a pearl by way of contrast to other judgments which have been placed before the Court, including one earlier this day. Clarke JA I also agree. I think we should also note that Finlay J's judgment had the virtue of being absolutely correct. Kirby P: The order of the Court, accordingly, is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: RC Tonner Solicitors for the appellant: C Branson QC/IW Raine Counsel for the respondent: GM Meadows (Government Insurance Office of New South Wales) Solicitors for the respondent: Spencer Whitby and Co