GEORGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO [1991] NSWCA 99

GEORGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 17 June 1991, 8 August 1991 [1991] NSWCA 99

WORRERS' COMPENSATION — partial incapacity — notional total incapacity — whether unavailable because worker is earning income during partial incapacity — whether s11(2) Workers' Compensation Act 1926 is sub ject to a limit on maximum compensation as recoverable under s11(1)(a)

held: (1) The fact that a worker during partial incapacity following a compensable injury earns income does not, as such, deprive the worker of entitlement to the benefits provided by s11(2) of the Act. Shoebridge v Commissioner for Railways (1961) 78 WN (NSW) 643; Chudleigh v David Bros Pty Limited (1962) 79 WN (NSW) 517 not followed; R J Brodie (Holdings) Pty Limited v Pennell (1969) 117 CLR 665; Pennell v R J Brodie (Holdings) Pty Limited (1967) 69 SR (NSW) 78; 86 WN (Pt 2) (NSW) 289 applied; Sydney City Council v Ince (1989) 16 NSWLR 690; Cassidy v International Combustion Australia Limited, Court of Appeal, unreported, 10 October 1988; (1988) NSWJB 183 followed; (2) In some cases the persistence of a worker in employment during partial incapacity will deny "mutuality" of employment and result in a finding of fact that the worker was not "ready, willing and able" to accept suitable employment if offered; (3) However, in the present case the trial judge (Egan J) had found, as a fact, that the worker was "ready, willing and able" to accept such employment despite his continuing work; that finding was unchallenged; it sustained the award under s11(2) in the worker's favour. Electric Power Transmission Pty Limited v D'Urso (1970) 124 CLR 338; Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171; Westfield Shopping Centre Management Co Pty Limited v Kassem (1986) 4 NSWLR 344; Holden v Toll Chadwick Transport Limited (1987) 8 NSWLR 222 considered. PRECEDENT - workers' compensation - anomalous results from construction of Act - desirability of conforming to settled construction of section and principles inherent in earlier holdings of the High Court and the Court of Appeal discussed. WORDS and PHRASES - "fails" - "partial incapacity for work". Workers' Compensation Act 1926, s9, s11. Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942. Workers' Compensation (Amendment) Act 1951.