WILLCOCKS v NEW BROKEN HILL CONSOLIDATED LTD [1989] NSWCA 233

WILLCOCKS v NEW BROKEN HILL CONSOLIDATED LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA

17 November 1989, 21 December 1989

[1989] NSWCA 233

Workers' Compensation — assessment and amount of compensation — partial incapacity — calculation of sum payable — miner — miner enters voluntary retirement — continuing physical incapacity and economic loss — claims

compensation under s11(1)(a) of the Workers' Compensation Act 1926 — trial judge (McGrath J) awards $90 per week — appeal — held: (per Kirby P) The calculation and exercise of discretion provided by s11(1)(a) miscarried in that no reference was made to the hypothetical continued earnings as a miner and, on the contrary, the trial judge had wrongly assumed that the worker was, by agreeing to the retirement redundancy, placed outside the mining industry. At most, his retirement from one mining employer was a consideration to be taken into account in the exercise of the discretion in the "third stage" required by s11(1)(a). Accordingly, the award must be set aside and the matter sent back to the Compensation Court for redetermination.

Kirby P This appeal was heard concurrently with the appeal in O' Loughlin v TheZinc Corporation Limited, judgment in which is delivered at the same time as this.

The facts of this case were substantially similar to those of Mr O'Loughlin's case. In my respectful opinion, the error of law which occurred at first instance was, relevantly, the same. McGrath J, before whom the proceedings came in the Compensation Court, referred in giving his short reasons for the award which he entered in this case, to the facts of Mr O'Loughlin's case. He acknowledged one or two distinguishing features which do not concern this appeal but are related strictly to medical and factual questions. He then went on to express a general view about the effects of the voluntary retirement agreement which Mr Willcocks, as Mr O'Loughlin, had entered with the respondent: