DEPARTMENT OF MINERAL RESOURCES v BARRETT and ANOR [1996] NSWCA 151

DEPARTMENT OF MINERAL RESOURCES v BARRETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY P and WADDELL AJA 18 April 1996, 6 December 1996 [1996] NSWCA 151

Workers Compensation — Assessment — Incapacity — Deduction for earlier settlement — Liability of subsequent employer

Worker (first respondent) suffered injury affecting use of legs while employed in mines — Claim against first employer (second respondent) settled by lump sum payment — Successful proceedings by worker in Compensation Court against Department of Mineral Resources (appellant) and award of compensation by Moroney J — Appeal by Department and cross-appeal by worker against assessment of amount of compensation — Incapacity resulting from earlier injuries — Amount for additional permanent loss of use of leg — Deduction for earlier settlement received — Question of apportionment pursuant to s22 Workers Compensation Act 1987 — Whether can be raised on appeal.

Held: appeal dismissed:

(i) If there was to be an apportionment it was necessary for that issue to be raised at trial. It was not appropriate, on the material before it, for this Court to attempt that task.

(ii) Because the notice of cross-appeal did not contest the right of the judge to make the deduction for the lump sums awarded, it was not necessary for the Court to consider the correctness of that deduction.

(iii) The material before the Court did not warrant disturbing the judge's decision at first instance.

Clutha Ltd v Danswan (1993) 9 NSWCCR 225; applied.; Department of TAFE v Pitt (1993) 9 NSWCCR 309; JJ Crockett Pty Ltd v Cox (1994) 10 NSWCCR 622; referred to.

ORDER:

Appeal and cross-appeal dismissed with costs.

Gleeson CJ I have had the benefit of reading in draft form the reasons for judgment of Mahoney P. I agree with the orders proposed by his Honour and with his reasons.