MAYNE NICKLESS LTD t/as IPEC TRANSPORT GROUP v DWIGHT [1997] NSWCA 197

MAYNE NICKLESS LTD t/as IPEC TRANSPORT GROUP v DWIGHT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and STEIN JJA, and CLARKE AJA 4 June 1997, 23 October 1997

[1997] NSWCA 197

Worker's compensation — negligence — successive accidents — incapacity — double dipping — direction to jury — s89(1) Supreme Court Act — inconsistent claims for disability.

FACTS

The respondent was employed by the appellant as a truck driver from 1986 until his dismissal in December 1991. On 5 May 1987, the respondent claimed he suffered injury to his left shoulder during the course of his employment. He had three days off work and returned to normal duties. On 14 March 1988, he suffered severe pain in his right shoulder allegedly arising during the course of his employment. He took a short break from employment. Then in February 1991 he claims he suffered further injury to his shoulder during the course of his employment. At common law, the respondent claimed the initial incident of 1987 was responsible for his subsequent incapacity and the two subsequent injuries merely aggravated this existing injury. In his subsequent claim for Worker's Compensation, he claimed disability arose from the second incident of 14 March 1988. He has received workers compensation for all three accidents. The appellant argues that it is these workers compensation benefits which give rise to the present appeal. First, the issue of these benefits was too complicated for the jury to consider and that his Honour erred in not granting the appellant's motion to dismiss the jury and secondly, the jury should have been directed to consider the benefits when determining the quantum of damages. Further, the parties agreed that the defendant's insurer had paid the medical expenses of the plaintiff worker for all three accidents, a sum agreed to be $30,961. In respect of this sum the jury were not instructed as to which parts of this sum were attributable to each accident. However, counsel for the present appellant has told this court that only $292.50 of this $30,961 was attributable to the first accident. The appellant claims his Honour erred in not dissecting these payments.