GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WARWICK [1993] NSWCA 120

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WARWICK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 3 and 4 November, 1993, 23 November 1993

[1993] NSWCA 120

DAMAGES — further injury increasing damages and attracting compensation rights. WORKERS COMPENSATION — injury — not tortiously caused but increasing damages for earlier tort — compensation rights not affected by recovery of damages.

The plaintiff sustained injuries in a motor vehicle accident in May 1987. Prior to that she had sustained injuries on three separate occasions and in January 1988 she injured her back in the course of her employment as a home care worker while lifting a child. The trial Judge found that the motor vehicle accident in May 1987 aggravated her pre-existing low back condition and resulted in a sequestrated disc. His Honour also found that prior to May 1987 the plaintiff was able to engage in full time employment without much difficulty or restriction and awarded damages on the basis that the May 1987 collision was the cause of all her subsequent injuries. These findings were based on misunderstandings of the expert evidence.

Held:

(1) It was not possible for the Court to determine whether the 1987 injury was the sole or contributory cause of the further injury sustained in January 1988 or whether the lifting incident and the lifting work which preceded it gave rise to a new and independent injury;

(2) S151Z of the Workers Compensation Act 1987 does not adjust the burdens of compensation and damages where a worker suffers a tortious injury which creates a vulnerability to further injury which is later suffered in circumstances which attract compensation rights but no fresh cause of action for damages.

Kornjaca v Steel Mains Pty Ltd (1974) 1 NSWLR 344 followed;

(3) The plaintiffs compensation rights must be taken into account in the assessment of her damages to avoid over compensation.