Brazel v James N Kirby Pty Limited & others [2001] NSWCC 16

Brazel v James N Kirby Pty Limited & others [2001] NSWCC 16

The Court accepted Dr Giblin's evidence on causation and apportionment. The applicant's original left knee injury with the first respondent made the first respondent responsible for hospital and medical expenses, including treatment following the 25 April 1997 fall. The later employment with the second and third respondents materially aggravated the left knee condition and caused a further 5.5 per cent permanent loss of efficient use of the left leg at or above the knee, apportioned equally between them, with a deductable proportion of one fifth. The evidence did not establish a current permanent loss of efficient use of the right leg.

Jurisdiction
Australia
Judgment Date
17 April 2001
Procedural Posture
Workers Compensation Claim for Lump Sums and Hospital and Medical Expenses / Judgment and Award
Outcome
Award for the applicant in part; right leg claim not established.
Legal Topics
['permanent Loss of Efficient Use of Leg' 'hospital and Medical Expenses' 'causation and Apportionment' 'deductable Proportion' 'work Related Aggravation']
['workers Compensation'] ['permanent Loss of Efficient Use of Leg' 'hospital and Medical Expenses' 'causation and Apportionment' 'deductable Proportion' 'work Related Aggravation']

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Procedural Posture

Workers Compensation Claim for Lump Sums and Hospital and Medical Expenses / Judgment and Award

Legal Issues

  1. 1 ['Whether the applicant suffered further permanent loss of the efficient use of the left leg at or above the knee as a result of employment with the second and third respondents.' 'Whether hospital and medical expenses, including treatment following the fall on 25 April 1997, were the responsibility of the first respondent.' 'Whether any loss of efficient use of the right leg was established.' 'Whether a deductable proportion under s 68(A) should be applied and in what amount.' 'Whether the matter should be dealt with under the disease provisions of the Act.']

Ratio Decidendi

The Court accepted Dr Giblin's evidence on causation and apportionment. The applicant's original left knee injury with the first respondent made the first respondent responsible for hospital and medical expenses, including treatment following the 25 April 1997 fall. The later employment with the second and third respondents materially aggravated the left knee condition and caused a further 5.5 per cent permanent loss of efficient use of the left leg at or above the knee, apportioned equally between them, with a deductable proportion of one fifth. The evidence did not establish a current permanent loss of efficient use of the right leg.

Court Disposition

Award for the applicant in part; right leg claim not established.

Orders

  • ['Award against the first respondent under s60 for hospital and medical expenses including those related to the fall of 25 April 1997.' 'Award against the third respondent under s66 in the sum of $3,300 in respect of 5.5% permanent loss of the efficient use of the left leg at or above the knee after allowing for the...