STATE OF NEW SOUTH WALES v SANDO [1996] NSWCA 491

STATE OF NEW SOUTH WALES v SANDO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and COLE JJA 23 May 1996, 24 July 1996

[1996] NSWCA 491

Workers Compensation — injuries in 1987 and 1992 — compensated twice for 1987 injury — Workers Compensation Act 1926 s16 — Workers Compensation Act 1987 s4, s65, s65(1), s73 — established interpretation of cl6.

The respondent worker suffered an injury to his right hand and wrist in 1987 and was compensated by agreement in 1988, pursuant to s16 of the Workers Compensation Act 1926. In 1992 he injured his right shoulder at work. The worker filed an application for compensation, which included injury to his right shoulder.

The Compensation Court found, that as a result of the two injuries, he had suffered a 20% loss of the use of the right arm, including loss of arm below the elbow, and as a result of the 1992 injury, he had suffered a permanent loss of the efficient use of the right arm at or above the elbow of 20%. The employer appealed on the basis that the worker's award contained an element that compensated him a second time for the 1987 injury.

Held: by majority, Sheller JA dissenting, the materials support the trial judge's finding that the 1987 injury to the right arm below the worker's elbow should be treated as having resulted from me later injury. This follows from a combination of me statutory provisions and earlier cases. An entitlement under s66(1) of me Act is not dependent on s9, but derives from s66 itself and the defined meaning of "injury" in s4. The Table under which the subheading, "Nature of injury" lists a series of descriptions, is affected by amendments made to the Table's interpretative provisions, primarily (d1) as amended by Act No 6 1994. The meaning of "Loss of an arm at or above the elbow" is extended by (d1) and operates in conjunction with the deeming provision in CL6, as interpreted by the court in Clutha Ltd v Danswan (1993)9 NSWCCR 225.