DEPARTMENT OF CORRECTIVE SERVICES v PATIKAS [1993] NSWCA 81

DEPARTMENT OF CORRECTIVE SERVICES v PATIKAS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and Cripps JA 17 August 1993

[1993] NSWCA 81

The respondent was in receipt of entitlements under the State Superannuation Act and was also entitled to compensation under the Workers Compensation Act 1987. The issue on appeal was whether the respondent's entitlement under the Workers Compensation Act should be reduced under s 46 to prevent payment of dual benefit.

Held:

It was not established that dual benefits were being paid. Moreover, benefits given to an employee under a superannuation scheme cannot be said to have been paid by the employer during the relevant period for the purposes of s 46.

Clarke JA. I will ask Mr Justice Cripps to give the first judgment.

Cripps JA. This is an appeal against a decision of Judge Johns in the Compensation Court on 3 September 1991 awarding compensation for the respondent relevantly for a period based on his total incapacity from 10 October 1989 to 20 (as it is now agreed it should be) January 1990.

The issue in this appeal, we were informed by Mr Oslington, on behalf of the appellant, is concerned solely with the construction and application of s 46 of the Workers Compensation Act 1987.

The question is whether the appellant was obliged to pay to the worker the maximum entitlement under the Act because of the respondent's agreed incapacity to work from 10 October 1989 to 20 January 1990.

The appellant contends that the trial judge ought to have had regard to the circumstance that during that period he was in receipt of entitlements under the State Superannuation Act and that, therefore, a proper application of s 46 of the relevant legislation required the Judge to make the appropriate allowance.

I am prepared to assume that the pension the respondent received from the Board arose out of his anxiety state, which was the same anxiety state that entitled him to the maximum award of compensation made by the learned trial judge.