Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352

FEDERAL COURT OF AUSTRALIA

Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352 APPEAL – application by respondent in Magistrates Court (ACT) for arbitration for an award pursuant to the Workers Compensation Act 1951 (ACT) – application dismissed by Magistrates Court (ACT) – appeal to Supreme Court (ACT) – order of Magistrates Court (ACT) set aside – matter remitted to Magistrate at first instance to be determined in accordance with law – issue to be determined by Magistrate was extent of incapacity – appeal to Federal Court – appeal dismissed with costs – Supreme Court judgment affirmed. WORKERS COMPENSATION – respondent suffering from pre-existing fibromyalgia – episodes of increased or exacerbated pain – episodes amounted to aggravation – no requirement that the exacerbations or aggravations affect the pathology of the underlying condition – must be a substantial contribution between the alleged continuing incapacity and the employment – factual question left undetermined was extent of incapacity. Workers Compensation Act 1951 (ACT), s 4, s 27, s 30 Federal Court of Australia Act 1976 (Cth) Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 Commonwealth of Australia v Beattie (1981) 35 ALR 369 Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157 The Darling Island Stevedoring and Lighterage Co Limited v Hankinson (1967) 117 CLR 19 Kattelus v Wakep Pty Ltd (In Liq) (1990) 100 FLR 291 CALDIPP PTY LIMITED t/as SLAVEN MOTORS v PERO DELOV No. A 6 of 2002 JUDGES: HIGGINS and MADGWICK JJ DATE: 26 NOVEMBER 2002 PLACE: CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A 6 OF 2002

DISTRICT REGISTRY

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY