NEW SOUTH WALES DEPARTMENT OF TECHNICAL AND FURTHER EDUCATION v PITT [1993] NSWCA 193

NEW SOUTH WALES DEPARTMENT OF TECHNICAL AND FURTHER EDUCATION v PITT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and CRIPPS JJA 18 November 1992, 11 June 1993

[1993] NSWCA 193

Appeal — assessment of damages for permanent impairment, loss of efficient use of limb, lump sum for pain and suffering and interest — whether "a most extreme case". Respondent had earlier settled a compensation claim against Metal Manufacturers Ltd. Appellant claimed that any disability now suffered by the respondent is a result of that earlier injury.

Held:

The trial judge erred in concluding that the maximum sum referred to in s66(2) was fixed at the date of hearing and not the date of injury.

In assessing "a most extreme case" the court is not required to assume that a claimant was a notionally healthy undamaged person before injury.

In a s66 application the court (by virtue of CL6 of Pt6 of Sch 6) has regard to the actual impairment of a worker and not the impairment that would have resulted had the worker not previously been impaired - this construction is reinforced in the case of back, neck and pelvis injuries by s73(g) which requires compensation to be paid as if any impairment existing before that injury did not exist - comparison drawn with s71.

Workers Compensation Act 1987, s66, s67, s60, s73, CL6 of Pt6 of Sch 6, s7l. Workers Compensation Act 1926, s15, s16 Supreme Court Act 1970

Bresmac Pty Ltd v Starr (New South Wales Court of Appeal, 24 December 1992, unreported)

Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322

Rodios v Trefle [1937] WCR 285

King v Hayward (1943) 67 CLR 488

Lexington Constructions Pty Ltd v Coyne (New South Wales Court of Appeal, 24 December 1992, unreported)

Alvorac General Engineering Pty Ltd v Arlotta (New South Wales Court of Appeal, 30 March 1993, unreported)