WORKCOVER AUTHORITY OF NSW v STEVENSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and CRIPPS JJA 16 November 1992, 23 March 1993 [1993] NSWCA 292 WORKERS COMPENSATION — lump sum award under s66 Workers Compensation Act 1987 — whether statutory figure at date of injury or date of judgment to be applied. Held: relevant figure is at date of injury: Bresmac Pty Ltd v Starr (unreported Court of Appeal 24 December 1992) applied. Priestley JA The respondent worker in this appeal was injured on 14 April 1989 and as a result became quadriplegic. He applied to the Compensation Court for awards of compensation under a number of sections of the Workers Compensation Act 1987. The first respondent to the application was the company found to be his employer. The second respondent was WorkCover Authority of New South Wales. A declaration was sought (and later made) that the first respondent was not insured as required by the Act at the time of the worker's injury. An order was sought that the second respondent cause payment of compensation and costs awarded against the first respondent to be made out of the WorkCover Authority Fund established under the WorkCover Authority Administration Act 1989. The case was heard by his Honour Judge Manser who made a series of orders and awards against the first respondent in favour of the worker on 7 November 1991. He also made the declaration already mentioned and the order against the second respondent. One of the orders against the first respondent (O.3) was that it pay the worker $120,100 under s66 of the Workers Compensation Act. (According to Mills, Workers Compensation New South Wales at 1534 (Service 33) the figure should have been $120,000, but I will use the figure stated in the court's orders.) Another order was that the first respondent pay interest to the worker on the sum of $120,100 at the rates prescribed under the Rules of Court from the date of injury. The employer/first respondent took no part in the proceedings and it is the second respondent who became the appellant in this court. The orders for payment under s66 and for interest on that amount were the only two matters raised by the appellant in its final oral submissions to this court. The amount of $120,100 was the amount which had to be read as the s66(2) amount, by reason of s80 and related sections, as at 7 November 1991, the date of judgment. The amount at the date of injury was $87,350. The appellant argued that the figure at the date of injury was the figure Judge Manser should have used. The worker maintained the figure at the date of judgment and applied by the judge was the right one. The identical point arose in the case of Bresmac Pty Ltd v Starr, (unreported, Court of Appeal, 24 December 1992). In Bresmac reasons were given for holding the figure to be awarded was the figure at the date of injury, not of judgment. For the same reasons I think the proper figure for the award under s66 in the present case was $87,350, not $120,100. The order appealed against must therefore be set aside, and the right amount substituted. 2 UNREPORTED JUDGMENTS On the question concerning interest on the s66 order, the court was told by the appellant that the worker had already been paid interest on $87,350 at the rate ordered by Judge Manser. In view of the conclusion I have come to on the main question, the fact that interest has already been paid on the correct amount may make the interest argument academic at a practical level. Because of the possibility that the court might reach the conclusion that the proper amount of the award was $87,350, the parties were asked at the end of the oral argument, to file written submissions on whatever issue remained between them about interest in the event the appellant succeeded on its main point. No submission on the point having been received, I assume the appellant does not wish to pursue the interest question if it should succeed on its main point. I therefore take the interest question no further. In my opinion O.3 made by Judge Manser should be set aside, and in its place an order made in the same terms, except for the substitution of $87,350 for $121,100. His awards and orders should remain otherwise as he made them. The respondent worker should pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act. Meagher JA I agree with Priestley JA. Cripps JA I agree with Priestley JA. 1 Appeal upheld. 2 Order 3 of Judge Manser set aside and replaced with order in same terms except substituting $87,350 for $121,100. 3 Respondent to pay appellant's costs of appeal. 4 Respondent to have Suitors Fund Act certificate. Counsel for the Appellant: J POULOS QC and S CAMPBELL Counsel for the Respondent: PM HALL QC and R HARRINGTON Solicitors for the Appellant! SE GARLAND, SOLICITOR TO THE AUTHORITY Solicitors for the Respondent: CARROLL and O'DEA