JEFFERIES v ROADS AND TRAFFIC AUTHORITY OF NSW [1997] NSWCA 167

JEFFERIES vy ROADS AND TRAFFIC AUTHORITY OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and STEIN JA 13 November 1997, 28 November 1997 [1997] NSWCA 167

Workers Compensation — whether subsequent injuries were caused by earlier injuries — effect on damages for non-economic loss and future economic loss

On 26 May 1992 the appellant was injured while working as a member of a road gang working in Swan Hill. The appellant suffered back pain and pain in his right leg. The injury was found to be caused by the respondent's negligence. On 7 August 1992 and 18 April 1994 the appellant was involved in two further incidents which caused pain and aggravation of his injuries.

The Master awarded damages on the basis that only part of the injury and disability occurring after August 1992 stemmed from the incident in May 1992.

Held: Appeal allowed

1. The Master was in error because the medical evidence revealed that the later injuries stemmed from the May 1992 incident and should be taken to be the cause of them.

2. The Master's decision was internally inconsistent - the appellant was given credit for 100% of the workers' compensation payments yet the Master found that only some of the injury stemmed from the May 1992 incident.

In the light of these errors the Master's assessment of damages for non-economic loss, loss of future earning capacity and a claim for possible future surgery needs to be re-assessed.

1. The Master's assessment of damages for non-economic loss at 35% of a most extreme case should be increased to 45%.

2. Damages for future economic loss should be increased from $75,000 to $120,000.

3. $2,000 should be allowed for the possibility of future surgery.

Mason P Master Malpass found the respondent/defendant liable in negligence for damages suffered by the appellant, its employee, in a work place accident that occurred on 26 May 1992. Judgment was entered for the plaintiff in the sum of $183,423.96 plus costs. The appeal challenges the adequacy of the damages in three respects.