VAN LEER AUSTRALIA PTY LTD v STEPHENSON [1994] NSWCA 331

VAN LEER AUSTRALIA PTY LTD vy STEPHENSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and POWELL JJA 11 August 1994, 9 September 1994

[1994] NSWCA 331

WORKERS' COMPENSATION — assessment of compensation — part-time worker.

WORKERS' COMPENSATION — assessment of compensation under s40 — worker a casual employee prior to injury — whether worker a "part time worker" under s42(4) — held: (per Priestley and Powell JJA; Handley JA contra) — not necessary to decide in present case — same result would ensue whether worker a casual or part time worker — assessment of compensation under s40 requires a "realistic amount" to be determined where worker not employed for a full week — trial judge had determined an appropriate "realistic amount": Smith v Dafinis (1991) 8 NSWCCR 9; Miller vy CSR Timber Products Pty Ltd (1993) 29 NSWLR 611 applied. WORDS AND PHRASES — "part-time worker".

Compensation Court Act 1984, s32. Workers Compensation Act 1987, s40, s42, s43.

ORDER Appeal dismissed with costs.

Priestley JA I have had the benefit of reading the reasons of Handley JA in draft. I agree with all he has written, subject to one reservation.

The reservation relates to the opinion he has formed concerning the meaning of part-time worker in s42(4). The subsection in its form applicable to the present case said:

(4) Subject to subs(6) and subs(7), if the amount of a part-time worker's current weekly wage rate, as determined under subs(1), exceeds the worker's average weekly earnings referred to in s37, a reference in this Division to that worker's current weekly wage rate is a reference to those average weekly earnings.'

By the Workers Compensation (Benefits) Amendment Act 1991 the words "referred to in s37" were deleted. (S3 and Schedule 1, CL(5)(b).) The explanatory note to CLS does not give any reason for the deletion of the words. I am not clear whether they have any bearing on the way in which part-time worker should be interpreted.