DUBBO BASE HOSPITAL v HARVEY [1996] NSWCA 579

DUBBO BASE HOSPITAL v HARVEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and BEAZLEY JJA 28 May 1996, 16 October 1996

[1996] NSWCA 579

WORKERS COMPENSATION — Whether award excessive based on medical evidence — whether s67 award compensated for previous injury Workers Compensation Act 1987, s66, s67

WORKERS COMPENSATION — Whether s66 award excessive based on medical evidence — whether s67 award compensated largely for previous injury The respondent suffered an injury to his lower back while employed by the appellant on 9 September 1992 when he slipped on a paved pathway. Prior to this incident, in 1989, the respondent had suffered injuries to his right side, including substantial loss of use of the right upper and lower limbs, in a car accident.

The trial judge found that the respondent's lower back condition arose from the incident on 9 September 1992, and pursuant to s66 Workers Compensation Act 1987, that the respondent's impairment was equivalent to 59% of a most extreme case. The appellant challenged the s66 award on the basis that it was outside a sound discretionary limit, the medical assessments given in evidence ranging from between 20 - 30% of a most extreme case. The trial judge also awarded the respondent 66% of the maximum amount of damages available under s67 for pain and suffering resulting from the permanent impairment of his back. The appellant argued that the trial judge erred in this award because it compensated the respondent for the losses he had sustained in the motor vehicle accident in 1989, for which the appellant was not liable.

HELD: (1) No appealable error was demonstrated in the trial judge's s66 award. The matters relied upon by the respondent demonstrated that he had suffered significant impairment of his back, and the trial judge's assessment fell within a permissible discretionary range.