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2.12 Incapacity overtaken or removed by a later injury
In some circumstances, the effects of a compensable condition can be overtaken and the entitlement to incapacity payments terminated by the effects of a new event. That 'new event' may include a new injury. This concept is referred to in the relevant case law as 'novus actus interveniens'. It applies where the nature of (or the effects of) that new injury or disease actually removes incapacity for work imposed by the first condition. In the case Re Sadek and Commonwealth (1988) the Tribunal said:
'Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole
Incapacity payments made in respect to poorly explained condition i.e. back pain, from a relatively minor injury may be terminated by the advent of a second, totally incapacitating but non-compensable injury to the same area of the body i.e. a wide area of the spine including the site of the previous injury. Novus actus would apply where the new incident inflicted serious damage to the vertebral level previously injured, i.e. to the point where the previous lesions cannot be separately detected.
The Commonwealth is paying weekly compensation in respect of an accepted right knee injury. Subsequently a non-compensable motor vehicle accident results in the person’s right leg being amputated at the hip. This removes original incapacity completely and there is no requirement to pay incapacity payments in respect of the original right knee injury.