CLUTHA LTD v DANSWAN [1993] NSWCA 64

CLUTHA LTD v DANSWAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and Cripps JJA 19 February 1993, 5 April 1993 [1993] NSWCA 64

WORKERS' COMPENSATION — statutory lump sum — loss of left leg at or above the knee — entitlement under s66 Workers Compensation Act 1987 — earlier injury received prior to commencement of 1987 Act — whether worker's loss resulted both from pre and post 1987 injuries — whether loss deemed to have resulted from injury received after commencement of 1987 Act — held: (affirming Moroney CCJ): By Schedule 6, Pt6, CL6 to the Workers Compensation Act 1987 the loss should be treated as having resulted from the injury received after the commencement of that Act.

STATUTES — construction — transitional provisions — artificiality and technicality of — need for care in application of provisions. LAW REFORM — lump sum compensation — compensation calculation — losses resulting from injuries before and after commencement of 1987 Act — proper approach to — possible need for provision to allow credit in respect of sums already paid under s16 Workers' Compensation Act 1926 — reference by Kirby P to possible need for law reform.

Bennett v General Motors Holdens Ltd (1940) 40 SR (NSW) 117 (FC) applied. Workers' Compensation Act 1926, s16. Workers Compensation Act 1987, s66, s67, Schedule 6.

Kirby P A number of grounds of appeal were argued in this matter. The only one of difficulty is the amended third ground which concerns the operation of the transitional provisions in Schedule 6 to the Workers Compensation Act 1987. For the disposition of the other grounds, I am in agreement with Cripps JA and wish to add nothing to what his Honour has said.

Successive injuries to the same leg

There is no doubt that Mr Peter Danswan (the worker), who is the respondent to this appeal, received an injury to his left leg after the commencement of Division 4 of Pt3 of the 1987 Act. That injury appears to have occurred in November 1990. It was so found by the judge of the Compensation Court (Moroney CCJ).