OWSTEN NOMINEES (NO 2) PTY LTD v GARDNER (ON BEHALF OF BETTY ANNETTE GARDNER) [1995] NSWCA 345

OWSTEN NOMINEES (NO 2) PTY LTD v GARDNER (ON BEHALF OF BETTY ANNETTE GARDNER)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 4 September 1995, 4 September 1995 [1995] NSWCA 345

WORKERS COMPENSATION ACT 1926 — APPEAL — CONSTRUCTION WORKERS OF s16 — "EFFICIENT LOSS OF USE"

Priestley JA Mr Justice Clarke will give his reasons first.

Clarke JA In this appeal the Court has been concerned, hopefully for the last occasion, with the proper interpretation of s16 of the Workers Compensation Act 1926. In that section it is subs(1), subs(4) and the table, which are of direct relevance. Subs(1) provides that a worker - "who has received an injury mentioned in the first column of the table hereunder set forth shall be entitled to receive... the amount indicated in respect of that injury in the second column of that table".

The table itself sets out a number of losses, such as the loss of either arm, and in subs(4) it is provided that "for the purpose of the table the expression 'loss of' includes 'permanent loss of the use of". Betty Annette Gardner, on whose behalf the claim was brought in the Compensation Court, received tragic injuries on 28 August 1986, in circumstances which entitled her to compensation under the 1926 Act.

The precise nature of the injury has not been discussed in depth but has been summed up in the description of senior counsel for the appellant as "Irreparable damage to the cortex of her brain which deprived her of all Bodily functions, without life supporting treatment, except the ability to respirate". She was paid, voluntarily, weekly payments of compensation and I assume her hospital expenses were paid.

She brought a claim in 1992 seeking compensation under s16 in respect, inter alia, of the loss of speech, the loss of hearing and the loss of efficient use of all four limbs. Her claim was upheld by Judge Moran on 9 December 1993, when he made an award in her favour in respect of all those and other losses.