KELLOGG (AUSTRALIA) PTY LTD v PIZANIAS [1989] NSWCA 119

KELLOGG (AUSTRALIA) PTY LTD v PIZANIAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 23 October 1989, 31 October 1989

[1989] NSWCA 119

WORKERS COMPENSATION — whether evidence supported award under s11(2) of Workers Compensation Act 1926 — whether evidence of failure by employer to provide suitable employment — no error of law by trial judge.

Mahoney JA I agree with the judgment of Priestley JA.

As his Honour has said, the only ground of appeal on which the appellant has in fact relied has been the ground which his Honour has specified: Mr Rolfe QC for the appellant, whilst not formally abandoning the other grounds, indicated that he would say nothing in support of them.

Mr Rolfe's contention was essentially that it was for the worker to show that, as at the date of the application to the compensation Court, there was a deemed total incapacity; that this required that he show that, as at that date, the employer was failing to do what s11(2) of the Workers Compensation Act 1926 then required it to do; and that there was no evidence that, at that date, there was, in the relevant sense, a failure to offer appropriate work to the worker.

I do not think that that submission should be accepted. The conclusion was open and should be drawn that at an earlier date, viz, in 1985, there had been a refusal and therefore a failure in terms to provide relevant work for the worker. It is proper to have regard to what happened subsequently up to the date of the application and, in my opinion, thereafter in order to determine whether, as a matter of fact, the employer continued to take such an attitude to the worker. I agree with Priestley JA that there was evidence on which his Honour could conclude that it did: if and insofar as it may be relevant, the proper conclusion from the facts was that it did.