Electric Power Transmission Pty Ltd v D'Urso [1970] HCA 40

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, and Owen JJ. Electric Power Transmission Pty Ltd v D'Urso [1970] HCA 40

ORDER Appeal allowed with costs. The order of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that Court be dismissed with costs. Barwick C.J., Menzies, Windeyer and Owen JJ.

The appellant is the former employer of the respondent worker who in the employment had been partially incapacitated for work. The appeal which is by special leave is against a judgment of the Court of Appeal of the Supreme Court of New South Wales which, by a majority, allowed an appeal against the decision of the Workers' Compensation Commission: [3] The Commission had rejected the worker's claim against the employer for compensation as for total incapacity which the respondent had made on the footing that the employer had failed to provide suitable employment for the worker during his partial incapacity for work as required by s. 11 (2) of the Workers' Compensation Act NSW.

1. (1970) 91 W.N. (N.S.W.) 756.

The judgment of the Workers' Compensation Commission is as follows, and we set it out in full:

On the probabilities I am satisfied that the applicant sustained an injury to his back on 13th December 1966 in the nature of a lumbo-sacral disc lesion which was already the site of degenerative changes.

Since 21st September 1967 the applicant has been partially incapacitated for his pre-injury work but has been fit for light work not involving much bending or lifting.

Had he remained uninjured and continued in the same or comparable employment he would have been earning in the vicinity of $60, and since 21st September 1967 he has been able to earn in suitable employment about $40 a week.

I find that the respondent has not failed to provide suitable employment since 21st September 1967 because, in the view I have formed of the applicant, he has not been genuinely available for suitable work if such had been made available to him.