BOROVAC v CORPORATE VENTURES PTY LTD (T/as BOWSERS ASHPHALT) [1995] NSWCA 54

BOROVAC vy CORPORATE VENTURES PTY LTD (T/as BOWSERS ASHPHALT)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 15 June 1995, 8 August 1995 [1995] NSWCA 54

WORKERS COMPENSATION ACT 1987 — APPEAL — s66 and s67 — WHEN IMPAIRMENT IS CONSIDERED PERMANENT FACTS The appellant suffered two injuries to the back in the course of his employment with the respondent. He was awarded compensation under s66 and s67 of the Workers Compensation Act 1987.

The appellant submitted that the judge erred in law in awarding interest on the amount awarded under s66 only from 7 December 1988 (the date of the operation to treat the ruptured L4-5 intervertebral disc lesion) and that the judge also erred in only awarding under s67 damages for pain and suffering that occurred after the operation.

HELD (PER CLARKE JA AND MEAGHER JA AGREEING)

Although it was only after the beneficial effects of the operation that it could be said that all of the impairment was permanent, there was nonetheless, a permanent impairment of his back caused by the employment injury which caused pain and suffering from the time of that injury. The fact that it was not possible to measure the extent of the permanent impairment

prior to the operation presents no reason for denying compensation for pain and suffering at the earliest time.

There is nothing in s67 which require that the court to limit the award for pain and suffering in that way, nor to compensate pain and suffering in that way, nor to compensate pain and suffering only from the time the permanent impairment became susceptible of assessment.

Similarly, both the losses under s67 and s67 flowed from the employment injury and thus interest should be awarded from that time. (per Mahoney JA)

The procedure for determining a s67 award is:

1. The Court must determine and identify what is the permanent impairment of the back for which compensation is sought.