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. In accordance with the rule of practice adopted in this court, it is necessary for Mr Toomey to persuade the court that he should be granted leave to re-argue the point that was decided in Danswan which led to the award made by Judge Duck in this case. The fundamental reason why he said that Danswan was wrong was that the court in that case failed to take account of the clause, "For the purpose of determining the amount of compensation payable in accordance with this part" in reaching its conclusions. During the course of submissions and in dialogue with the Bench, Mr Toomey was able to point to what appeared to be some extraordinary consequences or anomalous consequences which flowed from the interpretation adopted. The court has carefully considered these arguments and others which it is unnecessary to define at the present time. 2 UNREPORTED JUDGMENTS Since Danswan there have been three decisions of this court which have either applied this decision or have reached the same conclusion. They are Wilks v State Rail Authority, New South Wales (Court of Appeal unreported, 2 February 1985), New South Wales Department of Technical and Further Education v Pitt, (Court of Appeal, 11 June 1993 unreported) and Cox v JA Lockhart Pty Ltd (Court of Appeal, 26 October 1994, unreported). In addition, there has been a significant amendment to CL6 of Pt6, of schedule 6 which is of course, the relevant clause considered in the cases I have mentioned. That amendment does not apply to proceedings determined or commenced before the date of assent to the Workers Compensation Legislation Miscellaneous Amendments Act 1994 but does apply to all proceedings commenced after that date. It provides that where compensation had been paid under s16 of the 1926 Act for part of the loss resulting from the injury received before the commencement of the 1987 Act, then that compensation is to be deducted from the amount of compensation payable in accordance with CL6. Accordingly the decision in Danswan which has been followed as I have indicated will apply to a limited number of cases and will not apply to any cases commenced after the date I have mentioned. In all these circumstances, while the court recognises that in common with other provisions of this Act anomalies will result from the interpretation adopted in Danswan, I have concluded that leave to re-argue the point should not be granted. As that was the sole point on which the decision in this appeal depended, it follows that the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I agree. Clarke JA: The order of the court is as I have indicated. Appeal dismissed with costs. REPRESENTATION Counsel for the appellant: BMJ TOOMEY QC AND ADM HEWITT Solicitors for the appellant: SPARKE HELMORE Counsel for the respondent: G LITTLE Solicitors for the respondent: MAGUIRE AND McINERNEY