ALCAN AUSTRALIA LTD v JORDAN [1995] NSWCA 12

ALCAN AUSTRALIA LTD v JORDAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and HANDLEY JJA 18 April, 21 June 1995

[1995] NSWCA 12

WORKERS COMPENSATION — S11(2) award — Need for mutuality — Effect of post 1987 injuries- partial incapacity — discretion to avoid overcompensation — worker not entitled to separate awards of weekly compensation for separate disabilities from same injury.

The respondent commenced working for the appellant in its aluminium refinery in 1981. In 1982 he developed "pot room asthma" as a result of his exposure to fumes and was assigned to light duties. He injured his back at work in 1986 and in 1989 and on the latter occasion he also injured his knee but was still able to perform his light duties. However his asthma got worse and by April 1990 the work he had been doing since 1982 had ceased to be suitable. He was then dismissed. The trial judge found that the worker's asthma and not his back and knee injuries had prevented him from continuing to work at the refinery. He held that the worker had two continuing partial incapacities and relevantly made two awards. The first under s11(2) from 3 April 1990 and continuing was based on the worker's asthma and the second under s40 of the 1987 Act based on his orthopaedic injuries. Both were challenged and the worker cross-appealed against the judge's refusal to make separate awards for each orthopaedic incapacity. The worker's injury from asthma having occurred prior to the 1987 Act s11(2) was available for the resulting incapacity but with the repeal of the 1926 Act the section was not available for further injuries. Under Schedule 6 Pt4 CL4(3) of the 1987 Act the worker's incapacity due to his back injuries had to be treated as resulting solely from the 1989 injury. The employer submitted on appeal that the further orthopaedic incapacities destroyed the mutuality which was central to its obligation under s11(2) to provide suitable employment for its partially incapacitated worker.