ALLIED CONSTRUCTIONS PTY LTD v NORBEDO [1992] NSWCA 7

ALLIED CONSTRUCTIONS PTY LTD v NORBEDO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY AP and PRIESTLEY JA 5 May 1992, 29 May 1992

[1992] NSWCA 7

APPEAL from Compensation Court — Assessment of amount which worker, in injured state, "is able to earn" within s40(1) of the Workers Compensation Act 1987 — Factors to be taken into account in such assessment — "Value" of work done not determinative — Correction of errors in calculation.

Gleeson CJ I agree with the judgment of Mahoney JA.

Mahoney JA On 3 May 1988 the worker Frank Norbedo was injured in the course ofhis employment with Allied Constructions Pty Ltd. He claimed compensation under the Workers Compensation Act 1987. Compensation was paid to him until 14 December 1988.

The worker claimed compensation from 14 December 1988. On 9 May 1990 her Honour Judge O' Toole held that he had been "partially incapacitated between 15 December 1988... and continuing", "that comparable earnings exceeded the applicant's capacity to earn by an average of $290 per week", and made an award for the applicant in the sum of $290 per week "between 15 December 1988 date and continuing pursuant to s40".

The company has appealed to this Court against her Honour's award. It is agreed that the appeal is brought in respect of alleged errors in law: there is, in respect of the award, no appeal relevantly in respect of fact.

The amended notice of appeal specifies five grounds. The first ground relates to her Honour's award of $290 per week. It is agreed that her Honour erred in awarding compensation in this amount and that, by virtue of s37(1) and s40(3) the maximum amounts of compensation are as follows:

15.12.88 to 31.3.89 169.30 1.04.89 to 30.9.90 173.50 1.10.89 to 30.3.90 179.80 1.04.90 to 30.9.90 183.60 1.10.90 to 31.3.91 192.10 1.04.91 to 30.9.91 194.60 1.10.91 to 31.1.92 196.00 1.02.92 to 31.3.92 235.00 1.04.92 to date and continuing 242.20