GOVERNMENT SUPPLY DEPARTMENT v ELSIE ABBOTT [1993] NSWCA 122

GOVERNMENT SUPPLY DEPARTMENT v ELSIE ABBOTT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mauoney JA, MEAGHER JA and SHELLER JA 21 April, 7 May 1993 [1993] NSWCA 122

FACTS: The respondent/plaintiff was employed by the appellant/defendant as a cleaner at Government High Schools. She suffered a knee injury caused by repeated trauma resulting from the lifting of heavy chairs in the course of her duties and was awarded damages, inter alia, under s.67 of the Workers Compensation Act 1987, (NSW). The appellant claims the award was excessive.

HELD: (per curiam)

(1) s.67 allows for awards to be made as a proportion of the amount available for the "most extreme case" as allowed for in the legislation at the dates of the accident. The amount should not be calculated by reference to the amount at the date of trial.

(2) Taking quadriplegia as the most extreme case, this injury, although requiring knee surgery, must occasion less than fifty per cent of the maximum. Accordingly, an award is made in respect of twenty five per cent of the most extreme case.

Mahoney JA. I agree with the orders proposed by Meagher JA. It is accepted that the learned trial judge erred in awarding $23,125 for pain and suffering under s 67 of the Workers Compensation Act 1987. His award must therefore be set aside to this extent.

The appeal is by way of rehearing: at least, it is in the circumstances appropriate that this Court reassess the amount of the award.

Giving full effect to the evidence and the findings of the trial judge, as to primary facts, I do not think it was open to his Honour to conclude that the applicant should have one half of the maximum statutory amount. I agree with Meagher JA that one quarter of that amount is the sum that should be awarded.

Meagher JA. This is an appeal by an employer against an award made by his Honour Judge Moroney under the Workers" Compensation Act 1987 (NSW) in favour of its employee Mrs Elsie Abbott. She had been employed as a cleaner at Government High Schools. That involved repeated lifting of heavy chairs which knocked against her right knee. This repeated trauma became painful and led to a considerable swelling of the knee. This is the injury, dated 3 September 1989, of which she complains. Since that date, she has tried on a few occasions to resume work, but the attempt on each occasion has never exceeded two or three days. His Honour found her a completely honest witness, and the contrary has never been suggested.