RJ Brodie (Holdings) Pty Ltd v Pennell [1968] HCA 73

High Court of Australia Kitto Taylor, Menzies, Windeyer and Owen JJ. RJ Brodie (Holdings) Pty Ltd v Pennell [1968] HCA 73

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 7 Kitto, Taylor, Windeyer and Owen JJ.

On 6th November 1964 the respondent, as a "worker" within the meaning of the Workers' Compensation Act, 1926-1964 N.S.W., obtained an award which, inter alia, provided for compensation in respect of partial incapacity resulting from injuries arising out of or in the course of his employment with the appellant. Partial incapacity was found to exist from 1st September 1964 onwards and the weekly amount of compensation, assessed pursuant to s. 11 (1) of the Act, was £10, that being the difference between his average weekly earnings before the injury and the amount which the Commission found he would be able to earn after the injury and during the period of partial incapacity.

At the relevant time the material portion of s. 11 (1) of the Act was in the following terms:

(a) In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the worker before the injury, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.

whilst s. 11 (2), to which it will be necessary to refer, was as follows: An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for his pre-injury employment.

Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly.