BORIBO PTY LTD v MUNDY [1993] NSWCA 31

BORIBO PTY LTD vy MUNDY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and Cripps JJA 17 March 1993, 2 April 1993 [1993] NSWCA 31

WORKERS COMPENSATION — LUMP SUM FOR' PERMANENT IMPAIRMENT- INTEREST. WORKERS COMPENSATION — lump sum for permanent impairment — whether proper percentage applied to most extreme case. WORKERS COMPENSATION — lump sum for pain and suffering — whether excessive. INTEREST The Judge found that the worker had suffered a permanent impairment of his back equivalent to 15 per cent "within the range 0 to 60 per cent", and awarded the worker 15 per cent of the maximum sum of $85,200 then available under s66(1) of the Workers Compensation Act 1987.

The employer argued that consistently with his findings of fact, the Judge should only have awarded 15 per cent of the maximum of 60 per cent available in a most extreme case of back impairment. The employer also argued that the compensation awarded under s67 for pain and suffering was excessive.

On appeal from the Compensation Court (1) (Mahoney and Handley JJA) On the basis of his findings the Judge made no error in awarding 15 per cent of $85,200. Per Cripps JA (dissenting) The award was for only 15 per cent and not 25 per cent impairment of the back. (2) The award under s67 for pain and suffering was not so disproportionate to the nature and consequences of the injuries as to be beyond the range of the exercise of a sound discretion.

Moran v Moran (1985) 3 NSWLR 700 referred to.

ORDERS

1. Set aside 0.4 made by Judge Manser and in lieu thereof order that interest be paid on the compensation for past pain and suffering from the date of injury to the date of judgment at half the rate prescribed by the Rules of Court.

2. Otherwise appeal dismissed with costs.

Mahoney JA I have had the advantage of reading the judgment of Handley JA. I adopt his Honour's statement of the facts and of the issues.