AKAWA AUSTRALIA PTY LTD v CASSELLS [1995] NSWCA 10

AKAWA AUSTRALIA PTY LTD vy CASSELLS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, PRIESTLEY JA and ROLFE AJA 7 June 1995, 19 June 1995

[1995] NSWCA 10

WORKERS COMPENSATION — Claim pursuant to s40. Open to his Honour to assess the difference between pre-accident wage and post-accident ability to earn: Compensation Court as a specialist tribunal able to have regard to its knowledge of employment and wages. JC Ludowici and Son Ltd v Cutri (1992) 26 NSWLR 580 followed. Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR 87 and J and H Timbers Pty Ltd v Nelson (1971-1972) 126 CLR 625 considered and followed. EVIDENCE available to support award under s66.

WORKERS' COMPENSATION — partial incapacity — injury and re-engagement on light duties — employer moves business — worker ceases work by mutual agreement — entitlement under Workers Compensation Act 1987, s40 — whether error in the approach of the primary judge (Burke CCJ) — ability of worker to earn — held: No error — no issue of new principle. Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693 (CA) applied; JC Ludowici and Son Ltd v Cutri (1992) 26 NSWLR 580 (CA).

EVIDENCE — judicial notice — specialist tribunal — Compensation Court of New South Wales — entitlement of judge to rely upon experience and knowledge of matters in the labour market and wages paid for particular work — held: Judge entitled to draw on specialised knowledge. J and H Timbers Pty Ltd v Nelson (1971-1972) 126 CLR 625, Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 (CA) referred to.

Workers Compensation Act 1987, s40, s66, and s67. ORDERS Appeal dismissed with costs.

Kirby P : I agree with Rolfe AJA. Priestley JA : I agree with Rolfe AJA.

Rolfe AJA INTRODUCTION

The Applicant/respondent, who was born on | January 1966, sustained an injury to his left foot in the course of his employment with the appellant on 12 August 1987. Whilst he was driving a forklift with one foot hanging over its side, the forklift came into close proximity with an adjoining object and his foot was jammed. He was treated and remained off work until 19 October 1987, during which time he was paid workers' compensation. He resumed employment with the appellant on light duties in a clerical type position, which, apparently, was not foreign to him as he had previously been a trainee manager with a supermarket chain. He ceased to be employed by the appellant on or about 30 June 1988. This employment ceased because the appellant encountered "financial troubles and moved and couldn't keep me on so I left with a mutual agreement": AB13. During the time he was so employed by the appellant he received wages at least of an amount equal to those he was receiving prior to being injured.