FOX SOUND AND ELECTRONICS PTY LTD v MELLIOS [1995] NSWCA 153

FOX SOUND AND ELECTRONICS PTY LTD v MELLIOS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 6 June 1995, 26 June 1995

[1995] NSWCA 153

WORKERS COMPENSATION — weekly payments — post injury agreement with employer loss of earnings — s66 — permanent back injury — application of statutory formula whether award too high

In March 1990 the respondent, Con Mellios sustained injuries to his back in the course of his employment with the appellant, Fox Sound and Electronics Pty Ltd. By a document signed on 2 July 1990, the appellant agreed to provide the financial assistance necessary to sustain the respondent's full salary, while the respondent was waiting for compensation payments, on the understanding that the money was to be recovered in due course.

S40 of the Workers Compensation Act 1987 (WCA) provided that the weekly payment of compensation to a worker in respect of partial incapacity for work was not to exceed the difference between the amount the worker probably would have been earning but for the injury and the weekly amount the worker was earning or was able to earn after the injury.

His Honour found that the respondent's probable weekly earnings but for his injury were $580. He considered that the amount which represented the payment for the value of the work the respondent was performing after the injury was only $380; JD Ludowici v Cutri (1992) 26 NSWLR 580 distinguished.

Any amount above $380 received by the respondent his Honour treated as money the appellant had lent him. He used the difference of $200 per week to calculate weekly payments of compensation to be made under s40(1) of the WCA. The appellant challenged this conclusion on the basis that the money the respondent received after his injury from the company represented earnings. Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 858 at 623 per Kitto J referred to.