SULTAN v AUSTRALIAN IRON AND STEEL PTY LTD [1995] NSWCA 462

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

MEAGHER, SHELLER and POWELL JJA 17 August 1995, 31 August 1995.

[1995] NSWCA 462

WORKERS COMPENSATION ACT 1987 S67 — AWARD FUTURE PAIN AND SUFFERING MUST EXCEED AWARD PAST PAIN AND SUFFERING

FACTS: The appellant worker was an employee of the respondent when he was inadvertently hit by a hammer. This led to great pain in his elbows, both of which had to be operated upon. The worker began proceedings under s66 and s67 of the Workers Compensation Act, 1987. The trial judge made awards under both sections.

As to 67, the trial judge made an award in the sum of $9,000 to be apportioned as to $7,000 in respect of past pain and suffering and $2,000 in respect of future pain and suffering. The worker appealed against this award.

HELD:

(1) (By Meagher JA, Sheller and Powell JJA agreeing) In view of the fact that the trial judge made no adverse comment on the worker's credibility and that the respondent scarcely challenged that credibility, it should be assumed that the trial judge accepted the worker as a witness of truth.

(2) (By Meagher JA, Sheller and Powell JJA agreeing) The sum of $2,000 was risibly small to compensate the worker for future pain; and, on the medical evidence, the worker's future pain must exceed his past pain.

ORDER

(1) Appeal allowed.

(2) Order number 2 of 2 February 1993 set aside.

(3) In lieu thereof order the respondent pay to the appellant the sum of $16,000 compensation under s67, $7,000 to be apportioned in respect of past pain and suffering.

(4) Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act.

(5) This order to take effect as from 2 February 1993.

Meagher JA This is an appeal by a worker, Mr Khaled Sultan, against an award of O'Toole CCJ on the grounds of inadequacy.