THOMAS AND COFFEY AUSTRALIA PTY LTD v BATISTA [1995] NSWCA 469

THOMAS AND COFFEY AUSTRALIA PTY LTD v BATISTA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 15 June 1995, 15 June 1995

[1995] NSWCA 469

Workers Compensation Act — Appeal from award of lump sum under s66 — reasonably proportionate percentage to most extreme case.

Mahoney JA I will ask Clarke JA to give the first judgment.

Clarke JA The respondent who was the worker applicant in the court below sustained an injury at work on 19 January 1993. It would appear that whilst working on the job and engaged in the movement of a heavy iron pipe being lifted by a crane he suddenly took upon himself a great deal of the weight of the pipe and felt immediate pain in his back. The injury was found by the trial judge to have been an injury to a disc or discs in the lower part of his lumbar spine. He brought proceedings in the Compensation Court seeking a number of orders including payment of a lump sum under s66 and s67 of the Workers' Compensation Act 1987. The appellant has appealed from the decision in respect only of the awards of the lump sums and then only in so far as the award under s66 is concerned that part of it which related to permanent impairment of the worker's back.

The appellant has accepted that the task which his Honour was obliged to undertake was to determine what percentage of the sum set out in s66(1) should, in the light of the severity of the impairment, be regarded as reasonably proportionate to the maximum percentage.

When his Honour came to consider that precise question he used these words:

".... consequently when I compare the applicant to the legal standing having regard for the views expressed by the medical experts but also having regard to the evidence given by the worker then the appropriate comparison appears to me to be one third of a most extreme case..."