AUSTRALIAN IRON AND STEEL PTY LTD v NIXON [1995] NSWCA 30

AUSTRALIAN IRON AND STEEL PTY LTD v NIXON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 13 April 1995, 13 April 1995 [1995] NSWCA 30

WORKERS COMPENSATION ACT APPEAL — LEAVE TO RE-ARGUE POINT OF PRINCIPLE — CLUTHA v DANSWAN, (Court of Appeal, 5 April 1993, unreported)

Clarke JA On 11 March 1994, Judge Duck made an award in favour of the respondent, Mr Paul Nixon.

In the case, the facts which were proved demonstrated that Mr Nixon sustained a 15 per cent loss of efficient use of his right leg as a result of a work injury in 1985. He made a claim under s16 of the Workers Compensation Act 1926 and was paid compensation in respect of the loss I have mentioned.

On 5 March 1993 he suffered a further injury at work to his right knee and the view was expressed that at that time he was suffering from the equivalent of a 20 per cent loss of the efficient use of that limb. There was some variation between the doctors as to the contribution made by the second accident but it is unnecessary to spend time on that particular matter in the present appeal.

What is important is that at the time he presented to the Commission he was suffering from a loss equivalent to 20 per cent loss of efficient use of the right leg and that that loss resulted both from the injury suffered prior to the commencement of the Workers Compensation Act 1987 and the one suffered subsequent to the commencement of that Act Judge Duck awarded him compensation upon the basis that his loss of the efficient use of the right leg was 20 per cent. In so doing, his Honour applied the decision of this court in Clutha Ltd v Danswan (Court of Appeal, 5 April 1993, unreported) which he considered was indistinguishable.

In the appeal, senior counsel for the appellant, Mr Toomey of Queen's counsel, has limited his challenge by accepting that Danswan is indeed not distinguishable. His attack is a direct one on Danswan. He says that it is wrong and it should not be followed.