CASSIDY v INTERNATIONAL COMBUSTION AUSTRALIA LTD [1988] NSWCA 20

CASSIDY v INTERNATIONAL COMBUSTION AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MCHUGH JJA 10 October 1988, 10 October 1988 [1988] NSWCA 20

Workers' compensation — Workers' Compensation Act 1926 s11(2) — worker found to be ready, willing and able to undertake employment if employer offered it — application for award under s11(2) refused and award made under s11(1) — Held worker's entitlement to an award under s11(2) not conditional upon offer of employment by employer — appeal allowed. ORDERS (1) Appeal allowed. (2) Award in respect of period commencing 28 May 1985 set aside. (3) Proceedings remitted to Compensation Court to be dealt with in accordance with reasons of this Court. (4) Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified.

Hope JA The appellant was an applicant in the Compensation Court for compensation pursuant to s9, s11(1) and s11(2) of the Workers Compensation Act 1926.

The matter arose in this way. The appellant had, for most of his life, carried on business as a boilermaker on his own account. In March 1981 he commenced employment with the respondent as a boilermaker, shortly afterwards being promoted to the position of inspector. His work involved a considerable amount of bending and squatting. On 18 March 1983, in the course of his work, he fell and injured his left ankle and leg. His Honour Judge Manser found that the appellant had a continuing physical disability which prevented him squatting and performing duties of a similar type normal to the duties of a boilermaker.

On 11 October 1983 the appellant brought with him a medical certificate of Dr Trevitt and sought light employment from the respondent. This request was refused. On 2 March 1984 the appellant commenced employment as a lawn-mowing assistant with Mr Jim Purnell and his work with Mr Purnell was still continuing at the time when the application was heard by Judge Manser in May 1985. Before the proceedings had commenced the appellant's solicitor wrote a letter to the respondent's solicitor on 10 May 1984 in these terms:- "We refer to previous correspondence and wish to advise that the Applicant has obtained casual employment with Lawngroom Mowing of Eastwood as from 30/4/84. At this stage we are unable to provide you with exact details of income although the applicant expects to be earning on the average approximately $70.00 per week.