ZIZZATI PTY LTD v ADEMOSKI [1995] NSWCA 537

ZIZZATI PTY LTD v ADEMOSKI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 7 April 1995, 18 December 1995

[1995] NSWCA 537

Workers Compensation — For what injuries compensation is payable — "Injury" — Disease — Malignant chondrosarcoma — Whether progress of disease accelerated by employment related incident or by nature of employment — Whether point reached when contribution of any trauma had been overreached by natural progress of disease — Award — For closed period or continuing weekly payments.

Handley JA I agree with Powell JA. Sheller JA I agree with Powell JA.

Powell JA Two questions arise for determination on this appeal, which is brought from an Award made by Johns CCJ in the Compensation Court on the 6th August 1992, which Award provided for payment to the Respondent of weekly compensation, s60 expenses and costs arising from an injury which the Respondent claimed to have sustained in December 1987 while working in the Appellant's employ. The injury in respect of which the Respondent sought compensation was, however, not limited to the frank injury which he had sustained to his back, right hip and pelvis while in the course of loading a truck, but, in addition, extended to a "deemed injury" under the provisions of s16(1) of the Workers Compensation Act 1987 ("the Act'), that is, the acceleration of the progress of a chondrosarcoma from which he was then suffering together with the formation of a higher grade chondrosarcoma.

Those questions which were argued at the trial below and which call for a determination on this Appeal are: -

1. whether the Respondent had established any causal relationship between the frank injury and the acceleration of the progress of the chondrosarcoma: and

2. whether, even if such a causal relationship had been established, the Appellant had established that, whether prior to, or at the time of, the hearing below, the chondrosarcoma had reached a stage which it would have reached in any event even if there had been no frank injury, in which event, any award for the Respondent should have been for a closed period rather than for continuing weekly compensation.