HOSPITALS OF AUSTRALIA LTD t/as NOWRA COMMUNITY HOSPITAL v SOUTHERN [1998] NSWCA 108

HOSPITALS OF AUSTRALIA LTD t/as NOWRA COMMUNITY HOSPITAL v SOUTHERN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and STEIN JJA 4 May 1998, 21 May 1998 [1998] NSWCA 108

WORKERS COMPENSATION — impartiality — procedural fairness — whether judge properly assessed the medical evidence

Priestley JA I agree with Stein JA. Sheller JA I agree with Stein JA.

Stein JA On 5 June 1997 Neilson CCJ made an award in favour of the applicant/worker Mrs Julie Southern, the respondent to the appeal. The substance of the award was threefold:

1. lump sum compensation under s66 of the Workers Compensation Act 1987 (the Act) with respect to a finding of 20% permanent impairment of the applicant's back;

2. lump sum compensation with respect to a finding of 10% loss of use of the applicant's right leg at or above the knee; and

3. lump sum compensation of $16,100 under s67 of the Act with respect to pain and suffering, being 25% of the maximum payable.

Only the first of these awards is under challenge in the appeal.

The application before the Compensation Court sought an award of 15% with respect to the back, 5% with regard to the right lower limb and 20% under s67.

During the course of the hearing, counsel for the applicant worker was granted leave to amend the application as follows:

a) to claim 25% with respect to the back;

b) to claim 15% with respect to the leg; and

c) to claim 25% under s67.

The granting of the amendment is not challenged in the appeal, although the circumstances surrounding it are relied upon to support the contention of the appellant that it was denied a fair trial. It should be mentioned that the appeal is confined to an error of law.

To understand the thrust of the submissions made on behalf of the appellant it is necessary to briefly trace the course of the hearing before the Compensation Court.