LEES v BLUE CIRCLE SOUTHERN CEMENT LTD [1993] NSWCA 158

LEES v BLUE CIRCLE SOUTHERN CEMENT LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and Cripps JJA 19 February 1993, 7 April 1993

[1993] NSWCA 158

WORKERS' COMPENSATION — impairment of back — award of lump sum under s66 Workers Compensation Act 1987 — proper steps in calculation of award — necessity to determine reasonable proportionality of the case to "a most extreme case" — judge orders lump sum of $3,000 — sum awarded amounts to 6.07% of maximum provided for "a most extreme case' — whether judge sufficiently determined relationship of proportionality having regard to sum allowed

WORKERS' COMPENSATION — award — lump sum for permanent impairment of back — suggested errors of fact finding — whether worker exaggerated claims — whether clinical examination by medical practitioner consistent with conclusion of embellishment or exaggeration

JUDGES — procedural fairness — impression of party's demeanour — obligation to call impression to notice of parties or representatives — whether sufficiently done by judge

Held: (Meagher JA, Cripps JA concurring; Kirby P dissenting): No error was shown which requires correction. Award confirmed.

Offset Printing Pty Ltd v Porteus, Court of Appeal, unreported, 30 October 1992 referred to; Jones Bros Bus Company Pty Ltd v Baker (1992) 26 NSWLR 322 (CA) applied.

Held: (Meagher JA, Cripps JA concurring; Kirby P dissenting): It was open to the judge, upon the clinical examination (as distinct from the opinion) of the medical practitioner to conclude that the worker was fabricating although the medical practitioner found no evidence of embellishment or exaggeration - other suggested errors of fact finding rejected (by maj).

Held: (by the Court): Adequate notice was given by the judge of the impression that the party was exaggerating and was not significantly impaired.