QANTAS AIRWAYS LTD v RISTICH [1995] NSWCA 384

QANTAS AIRWAYS LTD v RISTICH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 7 August 1995, 23 August 1995

[1995] NSWCA 384

WORKERS COMPENSATION ACT 1926 — APPEAL — CONSTRUCTION OF s11(1) FACTS The trial judge awarded the respondent $200 per week for a number of different periods and continuing from the date of judgment in June 1992 for partial incapacity under s11(1) of the Workers Compensation Act 1926.

HELD

The trial judge was bound to decline to make any award under s11(1) in respect of a period unless the evidence established that in fact his actual earnings were less than those which appeared in the appellant's wage schedule or the respondent's tax return. Here, the amount actually earned by the respondent during the financial year ending 30 June 1989 was greater than he would have been earning if uninjured and working as a flight steward and the trial judge was obliged, to adopt the actual earnings which reject the claim for that period.

The probability that the trial judge's erroneous application of s11 (1)(a) led to errors in each of the years in question means that this Court is bound to set aside the trial judge's award and remit the proceedings to the Compensation Court for a new trial.

ORDERS

(1) Appeal allowed;

(2) Award of Moroney J on 23 June 1992 set aside;

(3) Proceedings remitted to the Compensation Court;

(4) The respondent's to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act;

(5) The costs of the first trial to be determined by the judge hearing the retrial.

Priestley JA I agree with Clarke JA.

Clarke JA Qantas Airways Ltd (the appellant) appeals from a judgment of Moroney CCJ in which his Honour awarded Miroslaw Ristitch (the respondent) $200 per week for a number of different periods and continuing from the date of judgment in June 1992 for partial incapacity under s11(1) of the Workers' Compensation Act 1926 (the 1926 Act). The substantial ground of appeal relied upon was that his Honour had failed properly to apply the provisions of s11(1).