BLAYNEY ABATTOIRS PTY LIMITED v O'DEA [1995] NSWCA 48

BLAYNEY ABATTOIRS PTY LIMITED v O'DEA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, SHELLER JA and POWELL JA 11 September, 5 October 1995 [1995] NSWCA 48

WORKERS' COMPENSATION — incapacity — meaning of — whether "4ncapacity" within s16(1)(b) of Workers Compensation Act 1987 involved necessary concept of economic loss — whether it refers to reduced physical capacity by reason of physical disability for work in labour market — held: (1) The "incapacity" referred to may not necessarily attract compensation, depending on the loss of earning power. Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171 appld; (2) No error was shown in the reasoning of the primary judge (Geraghty CCJ); (3) Award for weekly compensation affirmed.

Kirby P. I agree with Sheller JA.

Sheller JA. INTRODUCTION

From | July 1988 the first appellant, Blayney Abattoirs Pty Limited, employed the first respondent, Robert John O'Dea, in the abattoirs at Blayney. The second appellant, QBE Workers Compensation (NSW) Pty Limited, was the employer's insurer from | July 1988 to 15 June 1990. The second respondent, Heath Workers Compensation (NSW) Pty Limited, was the employer's insurer from 15 June 1990 and continuing.

The worker was employed at the Blayney abattoirs in 1963 and with some relatively short and immaterial interruptions has worked there ever since. During this time he was employed by various other owners of the abattoirs before the first appellant took over. In 1960, before starting at the abattoirs, hebroke his left wrist playing football. In 1968 he began working as a slaughterman.

In 1992 the worker filed an application for determination under the Workers Compensation Act 1987 (the Act). In the amended form of the application schedule C, the worker, relevantly, alleged that he was partially incapacitated from 25 July 1989 to date. On 29 September 1994 his Honour Judge Geraghty made an award, on the basis of partial incapacity, of weekly compensation at various rates from 25 November 1991 against the first appellant. He ordered the first appellant to pay the worker $9,171.75, as lump sum compensation under s 66 of the Act for a 15 percent loss of use of the worker's left arm below the elbow and $15,000 as lump sum compensation under s 67 for pain and suffering, $8,000 thereof to be apportioned in respect of past pain and suffering. His Honour made appropriate orders for interest, the payment of the worker's s 60 expenses and the payment by the first appellant of the worker's costs.