BURNS v LOVETT BUILDING CO PTY LTD [1995] NSWCA 65

BURNS v LOVETT BUILDING CO PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and SHELLER JJA

9 August 1995, 20 September 1995

[1995] NSWCA 65

WORKERS COMPENSATION — ASSESSMENT

WORKERS COMPENSATION — assessment — amount — weekly payments during incapacity — partial incapacity — an application by the employer for a review of weekly compensation payments — trial judge varied the payments — she found that the weekly amount that the worker would probably have been earning but for injury "was not less than $600 per week", and that the average weekly amount the worker was capable of earning or was able to earn in suitable employment, was $480 per week for one period, and then $500 per week from then on and continuing — on appeal, the worker challenged the both of these assessments — held — appeal dismissed — although a determination that the relevant weekly earnings would be "not less than" a particular sum does not comply with s40 of the Workers Compensation Act 1987, this was merely a textual slip, and when read in context, it was clear that the trial judge had made a determination that the relevant weekly earnings were $600 per week — if this was not the case, and the Court was required, as on a rehearing, to make an appropriate determination, then it would determine relevant weekly

earnings at $600 per week — in regard to the assessment of the worker's post-injury earnings, the trial judge was entitled to adopt different rates for the two periods — moreover, there was no relevant error demonstrated in the trial judge's assessments of these amounts.

Workers Compensation Act 1987, s40. ORDERS

Appeal dismissed with costs.

Mahoney AP On 10 October 1989 Richard David Burns ("the worker") was injured. He was partially incapacitated for his work as a labourer with carpentry skills. It is accepted that he has remained partially incapacitated until the present time. He applied for, inter alia, weekly compensation payments: Workers Compensation Act 1987, s40. His entitlements in that regard have produced a series of court hearings. On 2 May 1991 her Honour Judge O'Toole made an award in his favour. An appeal was brought to this Court and the award was set aside; it was remitted to the Compensation Court for an adjustment of the weekly compensation payments: Lovett Building Co Pty Ltd v Burns (1992) 29 NSWLR 475. On 21 September 1993, before that reconsideration had been completed, the employer company made an application for a review of the weekly compensation. On 27 September 1993, her Honour made a comparatively small adjustment to the order previously made for weekly payments. On 2 December 1993 her Honour gave judgment in respect of the application for review of the compensation entitlements. An appeal has been brought to this Court against that judgment.