SONYA MOTORS PTY LTD v FARES [1988] NSWCA 139

SONYA MOTORS PTY LTD v FARES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MCHUGH and CLARKE JJA 8 December 1987, 4 March 1988

[1988] NSWCA 139

Workers Compensation — error of law — incapacity — s11(2) — failure to provide suitable employment — R J Brodie (Holdings) Pty Ltd v Pennel, 117 CLR 665, Electric Power Transmission Pty Ltd. vy D'Ursa, 124 CLR 338, and Westfield Shopping Centre Management Co Pty Ltd v Kassem, (1985) 4 NSWLR 344 applied whether knowledge of insurer equates knowledge of employer. ORDERS The appeal is upheld and the matter remitted to the Compensation Court for further consideration. The respondent should pay the appellant's costs and have a certificate under the Suitors Fund Act.

Priestley JA I agree with Clarke JA.

McHugh JA The reasons expounded by Clarke JA in his judgment demonstrate that an error of law occurred in the proceedings in the Compensation Court. The appeal, therefore, must be allowed and the matter remitted to that Court. The respondent must pay the costs of the appeal. But he is entitled to a certificate under the Suitors' Fund Act 1951.

Clarke JA This appeal concerns an award made by Manser J in the Compensation Court of New South Wales on 30 October 1986 in which his Honour awarded the respondent weekly compensation from the 26 November 1984. It is apparent from the reasons for judgment that his Honour accepted that the respondent was partially incapacitated from that date and concluded that the appellant had failed to provide suitable employment for the respondent. Accordingly, he made an award in the respondent's favour upon the basis of notional total incapacity pursuant to the provisions of s11(2) of the Workers Compensation Act 1926 (as amended) (herein called "the Act").

The facts which founded the award were in a small compass. The respondent, who entered the employ of the appellant as a service station assistant in 1982, received injuries to his right shoulder, neck, wrist and both legs when he was robbed and assaulted at his service station at about closing time on 6 August 1982. He came under the care of Dr Medhat F Guirgis and initially was treated conservatively. However, his leg injuries continued to cause problems and in October and November 1982 he was admitted to Castlewood Hospital when identical operations were performed on each of his knees. In these operations the thickened subaponeurotic and subcutaneous repatellar bursae were excised. In addition the tibial tubical was shaved and the wounds closed in layers.