NEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM [1993] NSWCA 190

NEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, SHELLER and CRIPPS JJA 25 August 1993, 21 September 1993

[1993] NSWCA 190

APPEAL from Compensation Court — Back injury to nurse — Dispute as to relationship between work and disability.

WEEKLY PAYMENTS — Date when injury occurred which produced incapacity — No error as to when injury occurred or quantum of compensation to be ordered.

S66 AWARD — Uncertainty of findings basing s66 award of lump sum — No ground for interfering with judge's assessment — Effect of previous claim and award — Admitted error in failure to take account of previous payment.

S67 AWARD - Uncertainty as to basis of previous award — Uncertainty as to terms of present award.

Mahoney JA The worker Jennifer Lee Bingham was born on 28 December 1959. She trained as a nurse. In November 1984 she was employed by New South Wales Baptist Nursing Homes Trust ("the employer"). During her employment she developed a back condition. She ceased to work for the employer in February March 1989 because of that condition. Her employment was terminated in November 1989.

Weekly compensation was paid to the worker from the time she ceased to work until 1 May 1992. The weekly compensation was then terminated. The worker consequently commenced proceedings for compensation.

On 20 May 1993 his Honour Judge Davidson in the Compensation Court awarded the worker weekly payments, sums under s66 and s67 of the Workers Compensation Act 1987, interest, and other compensation. The employer has appealed to this Court against that award. It is accepted that the appeal is by way of rehearing: Supreme Court Act 1970, s75A.

In the proceedings in the Compensation Court, an issue was raised between insurers. The employer was insured by one insurer until 30 June 1987 and thereafter by another. In the Compensation Court, one insurer had assumed the carriage of the proceeding on behalf of the employer. His Honour gave leave to the other insurer to take part in the proceeding.