GIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD and ANOR [1995] NSWCA 176

GIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and SHELLER JJA 11 August 1995, 29 August 1995

[1995] NSWCA 176

WORKERS COMPENSATION — injury disease — dependant — s25 Workers Compensation Act 1987

APPEAL — reasons

On 22 September, Moroney CCJ ordered the employer, Northern Rivers County Council, to pay $221,750 in respect of the death of a worker, Geoffrey Raymond Campbell, to his widow, the second respondent, Dawn Marlene Campbell. The worker died as a result of a brain tumour in 1992 which developed from a melanoma on the face first detected in 1983. The first respondent, GIO General Ltd was the relevant insurer of the Council up to 30 June 1987 and the appellant, GIO Workers Compensation (NSW) Ltd, the insurer thereafter.

Pursuant to s9 of the Workers Compensation Act 1987 (the Act) a worker's entitlement to receive compensation flows from his receiving an injury. S4 provides that "injury" means personal injury arising out of or in the course of employment and includes a disease contracted by the worker in the course of employment or the aggravation, acceleration, exacerbation or deterioration of a disease and to which the employment was a contributing factor. $15(1) relevantly provides that the injury, being a disease of such a nature as to be contracted by a gradual process, shall be deemed to have happened at the time of the worker's death or incapacity.

The entitlement of a dependant to receive compensation flows from the worker's death resulting in injury; Odgen Industries Pty Ltd v Lucas (1967) 116 CLR 537. The amount of compensation depends on whether the injury from which death resulted was received before or after the commencement of Div 4 in 1987. CL2(1) of Pt3 of Sch 6 provides that the amount of compensation payable shall, if the death results from an injury received before the commencement of Pt3 in Div 1, is the amount payable under the former Act. In s25(1) fixes the amount of compensation payable to dependants.