Letizia Petralito v Awa Ltd [1992] NSWCC 2; (1992) 8 NSWCCR 21 (28 January 1992)

[1992] NSWCC 2; (1992) 8 NSWCCR 21 (3717-91)

LETIZIA PETRALITO v. AWA LTD

Compensation Court of New South Wales: Moroney J

28 JANUARY 1992

WORKERS COMPENSATION ACT 1987, SECTION 66 CLAIM HEARD AND DETERMINED BY COMMISSIONER - SUBSEQUENT CLAIM BEFORE JUDGE FOR COMPENSATION UNDER SECTION 67 - WHETHER ESTOPPEL ARISES - APPLICABILITY OF RULE IN HENDERSON V. HENDERSON IN WORKERS COMPENSATION CASES

K.F. Morrissey for the applicant

J.O. Tancred for the respondent

MORONEY J: The applicant is a married lady. She was born in 1941. She was injured on 17 September 1987 when she fell down a flight of stairs at her workplace. The circumstances of the injury and its immediate consequences are described in some detail in the reasons of Commissioner Wright which were tendered in these proceedings.

Commissioner Wright on 1 February 1991 made an award for weekly payments of compensation in favour of the applicant pursuant to section 40 and also an award pursuant to section 60 for medical and hospital expenses. More importantly for the purposes of these proceedings, he made an award pursuant to section 66 for a lump sum in respect of a 15 per cent permanent loss of the left arm below the elbow. This is an application pursuant to section 67 for an award for the pain and suffering due to that loss.

It is the respondent's contention that I am estopped from entertaining this application. The basis of that contention is that the application pursuant to section 67 should have been included and determined together with the other matters to which I have just referred, namely those dealt with by Commissioner Wright.

The respondent submits that I am bound by the decision in BOLES & ORS V. ESANDA FINANCE CORPORATION LTD, (1989) 18 NSWLR 666, and in particular the proposition referred to at the top of page 669 in the judgment of Samuels JA where he quotes the remarks of Sir James Wigram VC in the matter of HENDERSON V. HENDERSON, (1843) 3 Hare 100; 67 ER 313.

For the reasons which I gave at length in the matter of JOHN RICHARD KERR V. THE HUNTER DISTRICT WATER BOARd, No. 30779/91, 18 October 1991, I am not persuaded that this is the case, and I re-echo what I said in that judgment, particularly what I said of the decision of the Full Court of the Supreme Court of South Australia in the matter of SALMON STREET LTD (IN LIQUIDATION), (FORMERLY GENERAL MOTORS HOLDEN'S LTD) V. JORGENSEN, [1991] SASC 2963; (1991) 56 SASR 158, which I followed.

I find that the applicant is entitled to proceed before me with this application pursuant to section 67. [HIS HONOUR WENT ON TO CONSIDER THE EVIDENCE AND MADE AN AWARD FOR THE APPLICANT FOR $12,000, PURSUANT TO SECTION 67 - ED]

Having heard the submissions of counsel for the respondent in relation to costs and in relation to interest, for the reasons which are contained in those submissions and in the discussion between Bench and Bar, I will order that the applicant have her costs of this application.

In relation to interest, I apportion the lump sum of $12,000: $6,000 as to the past, $6,000 as to the future, and I award interest on the sum of $6,000 at the rate of 12 per cent from the date of injury (17 September 1987) to date.

Solicitors for the applicant: D. La Rosa, Izzo & Co

Solicitors for the respondent: Hickson Lakeman & Holcombe