WOOLWORTHS LTD v BLANDA [1992] NSWCA 282

WOOLWORTHS LTD v BLANDA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and Cripps JJA 15 April 1992, 15 April 1992

[1992] NSWCA 282

AWARDS — suspension and termination of award made in respect of workers compensation — worker resuming full time employment and therefore not ready willing and able to continue work with original employer. ERROR OF LAW — appeal to determine whether the Judge at first instance erred in law in determining the correct date for termination of the award. CASES — Edwards (Inspector of Taxes) v Bairstow and Anor 1956 AC 14 at 36. LEGISLATION — Workers Compensation Act (1987) s58 Workers Compensation Act (1926) s11(2)

Cripps JA This is an appeal against a decision of Judge Herkes in the Compensation Court given on 23 October 1990 terminating a continuing award for compensation as from 12 March 1990 and ordered the applicant employer to pay costs.

The appeal is limited to a question of law. On 3 January 1986 the respondent worker was injured lifting a wooden pallet while employed by the applicant. He was paid compensation and later adjudged partially incapacitated by Commissioner Reynolds with the result that from 5 April 1987 he became entitled to compensation pursuant to s11(2) of the Act. On 16 January 1989, the employer applied to the Court for a termination of the award as from September 1988. Later I think the application was amended so as to seek termination from July 1989. The employer made application for a suspension of the award which was made on 12 March 1990 by the learned Judge for the reason then stated that the applicant worker for compensation was working full time for the Fairfield Community Resource Centre as a youth development officer. On 23 October 1990 the learned Judge terminated the award as from 12 March 1990, that being the date he had suspended the award. He found that the worker, as I read his judgment, had been employed as a youth development officer since 3 July 1989 and from that time onwards he found that the worker, by reason of his position with his then employer, was not ready willing and able to take suitable employment with the employer. Upon that finding it is submitted that the Judge, as a matter of law, should have terminated the continuing award from 3 July 1989 and not from 12 March 1990.