NCR (AUSTRALIA) PTY LTD v NIKOLOV [1994] NSWCA 216

NCR (AUSTRALIA) PTY LTD v NIKOLOV

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and POWELL JJA 7 June 1994, 7 June 1994

[1994] NSWCA 216

APPEAL from Compensation Court — Claim for compensation under s66 of the Workers Compensation Act 1987 — Approach to be adopted in deciding what Judge meant by his judgment and the correctness of his award — Held: Error of law in formulation of award — Appeal upheld.

ORDERS 1. Appeal upheld and the award below set aside.

2. The amounts awarded in the Compensation Court of New South Wales be amended so that there be substituted in para2(1) of that Court's award the sum of $14,400 (in lieu of $24,000) and in para2(2) the sum of $4,800 (in lieu of $12,000).

3. The respondent to pay the costs of the appeal.

Mahoney JA This is an appeal from the Compensation Court. The applicant was injured in July 1987 and applied for compensation and as far as is here relevant, compensation under s67 of the Workers Compensation Act 1987. The appeal is an appeal only on law.

The learned judge in assessing the compensation payable under s66 referred to the extent of the injury which the applicant had suffered to his back and to his neck. He reviewed the evidence and then said: "The Act of course as it has been illuminated by the Court of Appeal in recent times, requires the court to make an assessment by comparing the applicant's case with that of a most extreme one, when it comes to assess permanent impairments of the neck and back. Having regard for the whole of the evidence, it seems to me that the permanent impairment of the applicant's back is equivalent to thirty per cent of the maximum amount under s66(1), and that the permanent impairment of the neck is fifteen per cent of that amount, those amounts are $24,000 and $12,000 respectively." His Honour therefore ordered payment of those amounts accordingly.