ROYAL NORTH SHORE HOSPITAL v SULLIVAN [1996] NSWCA 458

ROYAL NORTH SHORE HOSPITAL v SULLIVAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE, JJA 7 March, 15 March 1996

[1996] NSWCA 458

CONSIDERATIONS in determining amounts payable under s66 and s67 Worker's Compensation Act — approach of an appellate court to s66 and s67 findings.

Sheller JA I agree with Cole JA. Powell JA I agree with Cole JA.

Cole JA On 14 February 1994 Manser CCJ awarded the respondent Joy Elizabeth Sullivan $25,020 compensation pursuant to s66 Worker's Compensation Act 1987 in respect of permanent impairment of her back, compensation for 5% of permanent loss of efficient use of the left leg below the knee and compensation for 5% loss of efficient use of the left leg above the knee, and $35,000 compensation for pain and suffering pursuant to s67.

On appeal from that decision three matters have been raised:

1. That the finding that the respondent's impairment of her back was half of a most extreme case within s66 and the Table to that section and Note (a) thereto was insupportable.

2. That the award of $35,000 for pain and suffering when the maximum amount able to be awarded at the relevant time was $41,700 constituted a finding that the pain and suffering equated to 84% of a most extreme case and such a finding was unsupportable.

3. That the awarding of compensation in separate amounts for both above and below the knee was impermissible in the light of the decision in the High Court in K B H Hutcherson Pty Limited v Correia!.

It was accepted by the respondent that the decision in K B Hutcherson Pty Ltd would result in the appeal being upheld on ground 3 had the point been taken below. However it had not and, in those circumstances, it was accepted by Senior Counsel for the appellant that in light of the decision of this Court in Baker and Anor v Crittenden, the point not having been taken below could not be raised on appeal. Ground 3 thus fails.