J AND M LOJE BUILDING CONTRACTORS PTY LTD v LOJE [1995] NSWCA 214

J AND M LOJE BUILDING CONTRACTORS PTY LTD v LOJE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 6 September 1995, 6 September 1995 [1995] NSWCA 214

WORKERS COMPENSATION ACT APPEAL FROM REVIEW — WHETHER INJURIES OCCURRED IN THE COURSE OF EMPLOYMENT

Clarke JA On Tuesday, 2 June 1987, the respondent to the appeal, whom I shall call the worker, sustained very serious injuries when he was struck by a bus travelling south in George Street, Sydney. The point at which he was struck was approximately opposite a portion of the GPO being about four feet west of the eastern kerb of George Street and about four metres south of the southern most extremity of the pedestrian crossing in that street.

As a result of the injuries, which Dr Polgar described as "devastating and permanent", he had no recall of the circumstances of the accident, his last recollection being that he left a meeting with a Mr Jeffriess which had taken place in the GPO.

The worker and his wife were the sole directors and shareholders of the appellant before the court today, whom I shall describe as the employer.

The worker brought proceedings against the employer under s16 of the Workers Compensation Act 1926 (which I shall refer to as 'the Act') seeking weekly payments and compensation. He claimed that he was employed by the employer and at the time he received his injuries he was in the course of his employment.

I pause here to observe that I find it very troubling that, in 1995, the worker's claim has not been resolved. I do not wish to direct any criticism at any person or entity for this unfortunate situation, but it seems to me that the sooner the case is resolved, one way or the other, the better.

His application was heard by Commissioner Grayson who, on 5 September 1991, made an award in the worker's favour. In his reasons, the learned Commissioner considered two substantial areAs of disagreement. The first was whether the worker was entitled to compensation at all, the thrust of the argument being that he had not established that he was a worker in the employ of the employer. The second was whether, at the time he sustained his injuries, he had established, on the balance of probabilities, that he was in the course of his employment.