Birdon Marine Pty Limited v Glenn Alexander Jepp

Birdon Marine Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the District Court concerning a claim for damages for personal injury. The dispute arose from successive injuries sustained by the first respondent, Glenn Alexander Jepp, where the second injury was causally related to the first. The appellant, Birdon Marine Pty Limited, was alleged to be liable for both injuries.

The primary legal issues before the Court of Appeal were whether the trial judge had correctly applied section 151Z of the *Workers Compensation Act 1987* (NSW) in relation to successive injuries, particularly concerning deductions from any judgment to account for compensation already paid or payable by the employer. The court also considered whether the principles established in *Kempsey District Hospital v Thackham* (1995) 36 NSWLR 492 had been correctly applied and whether the conduct of the proceedings below had been dealt with consistently with the submissions made.

The Court of Appeal, in dismissing the appeal, affirmed the trial judge's approach. It was held that the trial judge had correctly applied section 151Z of the *Workers Compensation Act 1987* (NSW) by making appropriate deductions for past and future compensation payments. The court found no error in the application of the principles from *Kempsey District Hospital v Thackham* and concluded that the deductions were to be dealt with in accordance with how the submissions were presented at trial. The court also noted that there was no negligence on the part of the employer in relation to the second injury, as it occurred while the employee was adhering to work restrictions.

Consequently, the appeal was dismissed, and Birdon Marine Pty Limited was ordered to pay the costs of the first and second respondents.