DUNLOP OLYMPIC LTD v HONIN JABOUR [1991] NSWCA 84

DUNLOP OLYMPIC LTD v HONIN JABOUR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER and HANDLEY JJA 8 March 1991, 8 March 1991 [1991] NSWCA 84

WORKERS COMPENSATION — Appeal from Compensation Court to Court of Appeal — appeal from Commissioner to judge. APPEAL — Error of law. Judge holds Commissioner misdirected herself in considering capacity for pre-injury employment rather incapacity for work generally. Held: Commissioner did not err in law — her reasons did not disclose that ultimate issue of incapacity was decided solely on the basis of her finding that worker was fit for his pre-injury employment.

Workers Compensation Act 1926 s11 Arnotts Snack Foods Pty Limited v Yacobs (1985) 155 CLR 171

Handley JA This is an appeal against the decision of Judge Moroney of the Compensation Court who had himself allowed an appeal by the present respondent from a decision of Commissioner Ashford. Commissioner Ashford had heard and dismissed an application by the present respondent who had sought an award of compensation for total or partial incapacity resulting from an employment injury which occurred on 12 March 1984.

The employer had paid compensation until 29 August 1987 but payment of compensation had then ceased. The worker commenced proceedings in the Compensation Court shortly afterwards. In a reserved decision Commissioner Ashford held that she was not satisfied that the applicant had discharged the onus to support a claim for incapacity beyond the date that compensation ceased. Accordingly she made an award for the respondent.

The applicant appealed to the Compensation Court from this award. Such an appeal under the legislation then in force lay only in respect of questions of law. The appeal was heard and allowed by Judge Moroney. He held that the Commissioner had misdirected herself by considering only whether the applicant was fit for his pre-injury employment and not the wider question whether he was partially incapacitated for work. It will be obvious that in some cases an employee may be fit for his or her pre-injury employment yet still be partially incapacitated for work. It will be obvious that in some cases an employee may be fit for his or her pre-injury employment yet still be partially incapacitated for work, that is, for other work. The leading case on this question is that of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171. The High Court decided that incapacity for work denoted within the meaning of the workers' compensation legislation a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work although this incapacity may not necessarily attract compensation because it may result in no loss of earning power.