Buckwell v Andre Porebski & Associates Pty Ltd [2003] NSWCC 13

Procedural Posture

Workers Compensation Claim / Ex Tempore Judgment After Hearing

Legal Issues

1. 1 ["Whether the applicant's employment was a substantial contributing factor to the low back injury suffered on 20 February 2001." "Whether the injury arose out of and in the course of the applicant's employment." 'What deductible proportion should be applied for pre-existing degenerative disc disease under s 68A.' "The extent of permanent impairment of the applicant's back and loss of efficient use of the left leg at or above the knee." 'Whether the applicant was entitled to lump sum compensation under s 67.' 'Whether the respondent should obtain a stay of proceedings.']

Ratio Decidendi

The annular tear of the applicant's L4/5 disc resulted from the combination of pre-existing degenerative disc disease, bending forward over the desk to reach the day book, and coughing. The bending forward was an activity required by her employment and was necessary, though insufficient by itself, to cause the injury. The injury therefore arose out of and in the course of employment and, alternatively after considering s 9A(2), the employment was a substantial contributing factor. A 50 per cent deductible proportion was appropriate for the pre-existing condition, leaving compensable permanent impairment of 7.5 per cent of the back and 2.5 per cent loss of efficient use of the left leg at...

Court Disposition

Award for the applicant; application for stay of proceedings refused.

Orders

• ['Award for the applicant for $544 per week from 22 February 2001 to 22 March 2001 pursuant to s 36.' 'Award for the applicant of $272 per week from 23 March 2001 to 24 April 2001 pursuant to s 40.' 'Award for the applicant for $4,500 for 7.5 per cent permanent impairment of the back (15 per cent before s 68A).'...