URBAN TRANSIT AUTHORITY OF NSW v TABAJA [1990] NSWCA 178

URBAN TRANSIT AUTHORITY OF NSW v TABAJA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 22 October 1990, 22 October 1990

[1990] NSWCA 178

APPEAL — NO EVIDENCE — WORKERS COMPENSATION — TRANSPORT AUTHORITIES ACT 1980 SCHEDULE 5 CL2(1) — CLASSIFICATION OF EMPLOYEE — DUTIES OF EMPLOYEE

Meagher JA The respondent, Mr Tabaja, was working for the appellant, the UrbanTransit Authority of New South Wales, when on 5 December, 1983 he suffered an injury At the time of the injury he was a leading hand cleaner employed by the respondent.

The point which the appellant raises and it is the only point, is that there was no evidence that a leading hand cleaner had duties of a physical nature within his classification and therefore there was no evidence that he was required to do such duties.

Mr Sternberg has drawn our attention to the only evidence which is said to bear directly on this point, which is the evidence of Mr O'Neill who was Depot Manager for UTA employed at the Port Botany Bus Depot. During that evidence Mr O'Neill was asked: "Was the respondent a bus leading hand cleaner?" The answer was that he was. When he is asked to tell us what are the duties of bus leading hand cleaner he said, "To supervise and arrange the work for the cleaners that are working for him." He was then asked:

"Q. If a bus leading hand cleaner was to, for instance, inspect a bus and find that the bus was not satisfactorily cleaned, what would he do or what should he do? A. In my opinion he should get the cleaner that had done the unsatisfactory job and tell him to do the job correctly."

He was further asked:

"Q. Was he required at all to do the job himself to rectify the defective work? A. No, it is not necessary for him to do the job himself."

That evidence is the only evidence as to classification.