ATLAS v BULLI SPINNERS PTY LTD [1993] NSWCA 8

ATLAS v BULLI SPINNERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY and CLARKE JJA 7 July 1993, 5 August 1993 [1993] NSWCA 8

WORKERS' COMPENSATION — partial incapacity — notional total incapacity — award entered in favour of worker — subsequent application for review of award — reviewing judge finds continuing partial incapacity — declines to award payment of weekly compensation in accordance with s11(2) of the Workers' Compensation Act 1926 — no evidence given by the worker in the review application — no direct evidence that worker not ready, willing and able to undertake selected duties — worker asserts by her pleading such readiness — no evidence offered that employer has provided such work to the worker or made such work available since earlier award — choice of applicable statutory regime — whether primary judge failed to provide reasons for terminating benefits under s11(2) of the Act — held:

WORDS and PHRASES — "employer shall provide".

(1) By Schedule 6 Pt4 para5 of the Workers Compensation Act 1987, upon review of the earlier award being conducted, the rights of the worker to weekly compensation were to be determined, relevantly, under s11(2) of the Workers' Compensation Act 1926 and not s38 of the Workers Compensation Act 1987;

(2) The onus of establishing an entitlement to review and of discharge of the duties imposed by s11(2) of the 1926 Act rested upon the employer and not the worker;

RJ Brodie (Holdings) Pty Ltd v Pennell (1969) 117 CLR 665 applied;

(3) The duty of the employer to provide suitable work to an injured worker during partial incapacity was a continuing one.

Electric Power Transmissions Pty Ltd v D'Urso (1970) 124 CLR 338 applied;

(4) There was no positive evidence nor any inference available to the judge by which she could have concluded that the employer had provided such suitable work or that it was exempted from doing so because the worker was not ready, willing and able to accept suitable work if provided.