KEANE and ANOR v GELESKA [1996] NSWCA 296

KEANE and ANOR v GELESKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and COLE JJA 25 June 1996, 25 June 1996

[1996] NSWCA 296

WORKERS COMPENSATION — INJURY CAUSING AGGRAVATION OF DEGENERATIVE CONDITION — WHETHER EVIDENCE COULD SUPPORT JUDGMENT

Clarke JA This is an appeal from the judgment of Ward J given on 10 September 1992 in favour of the respondent, who was the plaintiff at the trial, in the sum of $64,365.55.

The trial was complicated by the fact that on 28 November 1988 Commissioner Ferris in the Compensation Court made a finding that the appellant had suffered an aggravation of a degenerative condition as a result of a work injury on 1 March 1984, and that aggravation had ceased in early 1987. As a consequence his Honour, who found a verdict in favour of the respondent against the appellant in respect of that work injury on 1 March 1984 proceeded on the basis that in awarding damages he was estopped from concluding that the aggravation had not ceased in 1987. Nonetheless his Honour expressed the view that if, following the award, the aggravation had re-asserted itself or caused continuing symptoms which were not incapacitating in the narrow sense it was open to him to award damages to the respondent for those effects.

The action and the appeal were also complicated by the fact that the District Court limit at the relevant time was $100,000 and his Honour's actual award was significantly in excess of that amount. Because he was obliged, by law, to allow only the maximum he did so and deducted from that payments already made and reached his verdict figure.

If the appellant succeeds in the appeal the respondent would be entitled, after the deduction of payments of compensation, to a figure of $52,179. It will be seen therefore that this appeal involves the very small amount of about $12,000. In the circumstances I do not propose to descend to the detail to which I might otherwise resort.