McWILLIAMS WINES PTY LTD v MARIE SERRAO [1989] NSWCA 144

McWILLIAMS WINES PTY LTD v MARIE SERRAO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER JJA and Hope AJA 24 November 1989

[1989] NSWCA 144

Workers' Compensation — Workers' Compensation Act 1926, s11(2) — Partially

incapacitated worker offered employment beyond her capacity — no other employment offered — worker left place of employment — award operated from next day and conceded not challengeable — claim by employer that worker's

capacity had thereafter improved and no notice given to employer — issue not litigated at trial — appeal dismissed.

ORDERS Appeal dismissed with costs.

Hope AJA This is an appeal from a decision of his Honour Judge Manser in the Compensation Court as long ago as 23 April 1986 in which relevantly he made an award in favour of the respondent worker under s11(2) of the Workers' Compensation Act 1926 as amended as from 23 February 1984.

The applicant claimed that she had suffered an injury to her low back in the course of her employment on 27 January 1984. Her evidence was that she was then working in a line of some half a dozen workers first in putting cartons together to hold bottles of wine and then in placing bottles of wine in those cartons. The latter operation was effected by each worker taking two bottles from the bottling line, putting them into appropriate places in the carton and then pushing the carton along to the next worker. His Honour found that the worker had suffered an injury in the course of her employment and, although this finding was originally the subject of the notice of appeal, it is no longer in issue.

After she had been so injured the worker went back to the employer's premises on 22 February 1984. She asked for work and was first required to get bottles from the floor and put them into the line. She claimed that this caused great pain to her back, and she was then given the work of sitting down and cleaning bottles. She worked on that day from 8 am to 2.30 pm, only a small part of that time being engaged in the first of those operations. She said that she found she could not carry out the cleaning work, and not being offered any other work, she left the place of employment. She did not return and her employment was terminated on 13 March 1984.