BAKER AND ANOR v CRITTENDEN [1995] NSWCA 37

BAKER v CRITTENDEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 5 June 1995, 17 July 1995 [1995] NSWCA 37

WORKER SEVERELY INJURED WHILE DRIVING BULLDOZER IN THE COURSE OF HIS EMPLOYMENT — trial judge finds worker to be totally incapacitated for work — award for permanent impairment of back and four separate awards for loss of efficient use of left arm above and below elbow and left leg above and below knee — the appellant argues trial judge erred in (1) finding total incapacity, (2) finding a causal connection between the accident and the back impairment, (3) making four separate awards in respect of two limbs contrary to the decision of the High Court in KB Hutcherson Pty Ltd v Correia (1995) 69 ALJR 280. HELD: On the materials before him the judge was entitled to make the findings of fact which he made in relation to total incapacity and back impairment. At the time the trial judge made the orders, the practice of making two assessments in respect of the one limb had been approved by this court. The High Court has now said that this practice is wrong, at least in respect of loss of efficient use of a leg. However, no point was taken before the trial judge on the correctness of the practice of making more than one assessment in respect of the same limb. Appellate courts will not usually permit a point not taken at first instance to be raised on appeal where course of hearing may have been different if point raised — that approach should be followed here. Per Mahoney JA, it may, in special factual situations, be necessary to adapt or qualify the approach laid down in Hutcherson. This is not such a case. However, appeal should be dismissed for reasons outlined by Priestley JA.

ORDERS Appeal dismissed with costs.

Mahoney JA The facts are detailed in the judgment of Priestley JA which I have had the advantage of reading. I agree generally with his Honour's judgment.