PIRELLI ERICSSON CABLES PTY LTD v CORREALE [1991] NSWCA 224

PIRELLI ERICSSON CABLES PTY LTD v CORREALE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 28 May 1991, 19 June 1991 [1991] NSWCA 224

DAMAGES — WORKER'S COMPENSATION Correale suffers injuries on six occasions between 1980-1984 and is partially incapacitated. Evidence varies widely but Correale found to be witness of truth. Correale put on light duties, then directed to heavy work which he declined and was then dismissed. Employer disputes this, saying worker refused light duties. HELD (per curiam): Either the work offered was too strenuous, or the offer of work was couched in terms which were incomprehensible to the worker. The doctrine of mutuality which applies where the worker is ready, willing and able to perform the alternative "suitable employment" — does not get to be considered because in either case the employer's central obligation — to offer suitable employment — was not met. Workers Compensation Act 1926 (NSW) ORDERS Appeal dismissed with costs.

Priestley JA I agree with Meagher JA. Clarke JA I agree with Meagher JA.

Meagher JA This was an appeal from Burke J by an employer which disputes an award made on 22 September 1989 by his Honour in favour of the worker, who is the present respondent. In his application, the worker alleged that he suffered an injury in "November 1980, August 1983 and 3 April 1984". He alleged that his "injury" caused "total and partial" incapacity "from November 1980 to 11 August 1986", and "total, partial or partial incapacity deemed total" from 12 August 1986 until the application. The evidence, which came from many witnesses, ranged widely, and his Honour was confronted with evidence of the worker suffering at work back injuries on 16 May 1980, 25 October 1980, 27 October 1980, some unnamed dated in November 1980, and (if it be different from the previous version) on 10 November 1980. There was also evidence that injuries occurred on at least six occasions in 1983: 31 May 1983, 7 June 1983, 8 June 1983, 15 June 1983, 1 July 1983, 1 August 1983 and (if it be different from the last) on some unnamed dated in August 1983. As far as 1984 was concerned, there was evidence of an injury at some unnamed date in March 1984 as well as on 3 April 1984. The details of each of these alleged injuries varied somewhat, and the very existence of most if not all of them was in dispute. His Honour found that the worker was a witness of truth, although unreliable in his detailed recollection. His Honour ultimately found that he had "sustained injury to his spine in late 1988, August 1983 and April 1984". Mr Sharpe, counsel for the employer, submitted that this finding can be attacked, essentially because it was so lacking in specificity that it amounted to a refusal to give reasons. This submission, in my opinion, should be rejected. All his Honour did was, in effect, to find as a matter of fact that the injuries and incapacity alleged in the application had been made out; and Mr Sharpe conceded that there was evidence which could justify such a finding.