Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1985, Feb. 5 Mason, Wilson, Deane and Dawson JJ.

This appeal from the New South Wales Court of Appeal raises the important question whether the concept of incapacity for work in the Workers' Compensation Act 1926 N.S.W., as amended ("the Act"), especially as it is expressed in s. 11, means, (a) physical incapacity for actually doing work in the labour market in which the employee works or may reasonably be expected to work; or (b) physical incapacity resulting in actual economic loss.

The respondent claimed compensation in the Workers' Compensation Commission of New South Wales ("the Commission") as for total incapacity under s. 11(2) of the Act in circumstances which are set out in the judgment of Mahoney J.A. in the Court of Appeal. The respondent was employed by the appellant to do work that was, in the main, clerical, but which involved also, to a limited extent, the climbing of ladders and lifting and manipulation of moderately heavy boxes. On 5 February 1980, whilst so employed, he fell from a chair and aggravated an existing condition in his back. He now has pain and limitation of activities particularly in the lower back. This has an effect on the work which he can reasonably do. He cannot climb or lift boxes. He is unable to do the precise work which formerly he could and did do. However, he can do normal clerical work and, in particular, he can do that portion of his former duties which is purely clerical and does not involve climbing or lifting.

Section 11 provides:

(1)

(a) In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, 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.