FRIDAY COTTAGE AUSTRALIA PTY LTD v MISIC [1995] NSWCA 156

FRIDAY COTTAGE AUSTRALIA PTY LTD v MISIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 5 June 1995, 22 August 1995

[1995] NSWCA 156

WORKERS COMPENSATION — lump sum — Trial Judge's award not supportable.

The worker was injured in 1989. In 1992 Manser CCJ awarded weekly compensation for partial incapacity, finding that the worker was able to work. In 1993 the worker sought a lump sum award for 30% permanent impairment to his back. Manser CCJ awarded $38500 or 73.45% of the award "payable only in a most extreme case". A medical panel had assessed the impairment to the worker's back at 20%, and three doctors at 50%, 25%, and 10% respectively.

Held: His Honour's award could not be supported. Compensation was reassessed in accordance with the findings of the Medical Panel.

ORDERS

1. Appeal allowed with costs.

2. Set aside the award of $38,500 as lump sum compensation under s66 in respect of permanent impairment of the applicant's back and substitute an award of $10,482 with effect from 16 February 1993.

3. The respondent to have a certificate under the Suitors Fund Act.

Mahoney JA I agree with the judgment of Handley JA. Priestley JA I agree with Handley JA.

Handley JA This is an appeal from an award of lump sum compensation under s66 of the Workers Compensation Act 1987 made by Manser CCJ on 16 February 1993. The claim arose from a work injury on 27 August 1989. The Judge determined the worker's claim for weekly compensation on 4 March 1992. He was not satisfied at that time that his condition was permanent and he declined at that stage to assess his lump sum entitlements. The Court has been supplied with a copy of this judgment which was not in the appeal book.

In the judgment under appeal the Judge reviewed the worker's evidence and concluded:

"... the applicant's apparent carelessness with the truth, raises serious doubts about his veracity generally, and produces a situation to my mind where I cannot rely upon the applicant's complaints... "