NEW SOUTH WALES HARNESS RACING CLUB LTD v FORREST [1995] NSWCA 313

NEW SOUTH WALES HARNESS RACING CLUB LTD v FORREST SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and POWELL JJA 9 June 1995, 1 September 1995.

[1995] NSWCA 313

Appeal from Compensation Court — Harness racing — Driver injured in accident during race — Deemed employee — Assessment of weekly compensation: s40, Workers Compensation Act 1987 — Whether "uninjured earnings" to be calculated by reference to actual or comparable employment — "Injured earnings'calculated by reference to State Award for workers in racing industry — Deduction for amounts actually earned.

ORDERS

Appeal dismissed, subject to adjustment of calculations. Short minutes to be prepared. Appellant to pay the respondent two-thirds of the costs of the appeal and, if entitled, to have a certificate under the Suitors Fund Act.

Mahoney JA Miss Joanne Lee Forrest, the applicant, was injured on 31 August 1990 whilst driving a horse in a harness race. She was, it is accepted, a deemed employee of the New South Wales Harness Racing Club Ltd ("the Club"). She has been partially incapacitated because of the injury suffered by her and has claimed compensation from the Club under the Workers Compensation Act 1987. Her claim was heard by his Honour Judge Davidson of the Compensation Court.

There was, at the hearing, a contest as to the incapacity which she claimed to have suffered. His Honour concluded that she had suffered and continues to suffer "partial incapacity as the result of her injury to the low back, to her neck and to her left upper limb". That incapacity is not now in question.

The trial judge made an award of, inter alia, weekly compensation for various periods commencing on 15 October 1990 and continuing. Subject to adjustment in respect of one period (the details of which are not now relevant) his Honour awarded weekly compensation at the rate of $185 per week from 15 October 1990 to the date of the judgment and continuing. It is the amount of the weekly payments which is alone now in question.