GIO WORKER'S COMPENSATION (NSW) LIMITED v EATON [1996] NSWCA 215

GIO WORKER'S COMPENSATION (NSW) LIMITED v EATON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER and COLE JJA 26 August 1996

[1996] NSWCA 215

PERSONAL INJURY — Workers Compensation Act 1987 s151H — subsequent injury — assessment of damages

Sheller JA. GIO Worker's Compensation (NSW) Limited appeals against a decision of his Honour Judge Mahoney QC given on 26 July 1995. The plaintiff and first respondent, Stephen Allan Eaton, was an employee of the second respondent, the Commissioner of Main Roads, to which I will refer as the RTA, on two occasions when he was injured in the course of his employment. The first occasion was on 20 August 1982, and has been described as the Somersby incident, and the second on 26 November or 3 December 1991, and has been described as the Mount Kuring-gai incident. The trial Judge found that the second incident occurred on 3 December 1991 and that finding is not challenged.

Mr Eaton sued the RTA for negligence and breach of duty. The proceedings were commenced in 1987. On 13 June 1995 RTA filed a third party notice against GIO General Limited (GIO) pleading that it was entitled to be indemnified in respect of its liability to the plaintiff. GIO's defence to the third party claim was that it went off risk as worker's compensation insurer on 30 June 1988.

There were various issues between the parties relating to the matters of limitation and otherwise but it is unnecessary to go into those.

His Honour found a verdict for the plaintiff against RTA in the sum of $684,648.23.

On the third party proceedings his Honour was satisfied that RTA was entitled to be indemnified by GIO except for the amount of worker's compensation entitlements referable to the Mount Kuring-gai incident which was ultimately quantified by consent at $533.20. This result was explained by his Honour's conclusion that any worker's compensation to which the plaintiff might have been entitled or might in the future become entitled in respect of the Mount Kuring-gai incident must be deducted from the verdict. Section 151H of the Worker's Compensation Act 1987 precluded recovery for economic loss unless the worker had received a serious injury, with like consequences unders151G(3) of the Act in terms of recovery for non-economic loss. This conclusion was not challenged in this appeal but explains the ground of appeal in which GIO contends that the injury suffered on 3 December 1991 comprised a serious injury within the meaning of s 151H of the Act.