BROKEN HILL PROPRIETARY CO LTD v KUHNA [1992] NSWCA 30

BROKEN HILL PROPRIETARY CO LTD v KUHNA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and CRIPPS JJA 17 August 1992, 26 August 1992

[1992] NSWCA 30

The respondent (a miner) was injured at work on 4 June 1988. At first instance, although it was found the injury was attributable to the serious and wilful misconduct of the worker, compensation was still payable as the injury resulting in serious and permanent disablement under s14 Workers ComPensation Act 1987.

The employer appealed against the finding that injury resulted in serious and permanent disablement.

HELD: The trial judge was correct in his finding and there was evidence to support his finding.

To satisfy the requirement of "serious and permanent disablement" it is not necessary to show that all capacity for employment has gone. It is necessary to show that the disability is both serious and permanent: Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125, CF Wicks v Union Steamship Co of New Zealand (1933) 50 CLR 328. The fact a worker may now be earning more in a clerical capacity than he would as a miner does not mean he has not been seriously and permanently disabled.

Mahoney JA I agree with the judgment of Cripps JA. Mr Timbs QC, who appeared for Broken Hill Proprietary Co Ltd, sought at length to establish that, within s14(1) of the Workers Compensation Act 1987, "serious and permanent disablement" connotes disablement for work generally and not merely for the work or the kind of work done by the worker at the time of the injury. I do not accept that that is the meaning of the phrase. No doubt the word "disablement" refers primarily to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is "serious", the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively. This provision is not concerned with quantification of compensation according to the extent of incapacity. It is, in its function, part of a condition imposed upon the right to a payment of compensation. I agree with the orders proposed by Cripps JA.