BRUTTCORN Pty Ltd T/AS COBARGO MOTORS AND BERMAGUI AUTOMOTIVES v PYKE [1993] NSWCA 41

BRUTTCORN Pty Ltd T/AS COBARGO MOTORS AND BERMAGUI AUTOMOTIVES v PYKE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and Cripps JJA 18 February 1993, 26 March 1993 [1993] NSWCA 41

WORKERS' COMPENSATION — statutory lump sum — permanent impairment of the back — certificate of Medical Panel estimates 15% total "loss" — other medical estimates directed to "loss of function, lumbar spine", "permanent impairment of low back function" and incapacity for work — Compensation Court judge (Manser CCJ) awards 20% of maximum amount payable — appeal to Court of Appeal

INTEREST — workers' compensation — award of interest on past pain and suffering — whether MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 (HC) applies — whether Ruby v Marsh (1975) 132 CLR 642 applies

LEGAL PRACTITIONERS — duty of professional care — medical certificates in workers' compensation cases — certificates unresponsive to precise statutory criteria — observations by Kirby P on the duty of practitioners to redirect medical witnesses to the correct statutory issues.

Held:

(1) The judge was not bound in the circumstances to adopt the Medical Panel's assessment but the assessment was for him to determine.

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

(2) There was evidence sufficient to sustain the judge's award.

Held:

(1) An award of interest at 17.3% was excessive.

Arklow Pty Ltd (t/as Champion Press) v Taavao, Court of Appeal, unreported, 11 June 1992 applied;

(2) Interest of 8.6% substituted.

Workers Compensation Act 1987, s66, s67, and s131.

Kirby P It is remarkable that, although the Workers Compensation Act 1987, s66 has been operating for a number of years, it remains difficult to secure from medical witnesses assessments under the section which are directed to the precise criteria mentioned in the section and in the Table referred to by it.