KOGARAH GOLF CLUB LTD v SULLIVAN [1993] NSWCA 155

KOGARAH GOLF CLUB LTD v SULLIVAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and SHELLER JJA 1 April 1993, 23 April 1993

[1993] NSWCA 155

WORKERS COMPENSATION — PARTIAL INCAPACITY — AVAILABILITY OF SUITABLE WORK — MUTUALITY The applicant worker was injured in the course of his employment with the appellant (Kogarah). After a period off work he resumed normal duties, having been refused light duties. He later left this employment for reasons unconnected with its suitability, and after a time began work with the second respondent (Arncliffe) during which his condition deteriorated. He left that employment after being refused light duties on 16 January 1986. Kogarah was ordered to pay the worker compensation pursuant to s11(1) of the Workers Compensation Act 1926 on the basis of partial incapacity from the time that he left work with Arncliffe until 16 January 1987 and pursuant to s11(2) on the basis of total incapacity thereafter. Kogarah appealed against both orders. Kogarah contended that the trial judge erred in finding that it had failed within the meaning of s11(2) to provide the applicant with suitable employment or that the applicant was ready willing and able to engage in such employment with Kogarah. Kogarah relied upon the applicant's relinquishment in August 1983 of his employment with Kogarah for reasons unconnected with its suitability and the absence of evidence that the applicant was thereafter ready willing and able to engage in suitable employment with Kogarah. It submitted that the applicant having left its employment for reasons which had nothing to do with suitability, his readiness and willingness to return to suitable employment were of no significance unless Kogarah was aware of this. Alternatively it argued that it had provided and the applicant had relinquished suitable employment. Kogarah also contended that in making an order under s11(1) the trial judge should have treated the applicant's earnings with Arncliffe as the measure.