VAUGHAN L CHAPMAN (t/as GUNDOWDA GRAZING CO) v WEBB and ANOR [1995] NSWCA 72

VAUGHAN L CHAPMAN (t/as GUNDOWDA GRAZING CO) v WEBB and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 6 June 1995, 8 September 1995

[1995] NSWCA 72

Worker in primary industry — Successive employers — Full time worker — On return to work after cancer treatment only two days per week available — Subsequent total incapacity — Calculation of weekly payments

Appeal from Compensation Court — Worker in primary industry — successive employers — Full time worker — Return to work after cancer treatment — Only two days per week work available — Subsequent total incapacity — Calculation of weekly compensation payments — Whether worker was, as on return to work, a "part time worker" for purposes of s36-s43 of Workers Compensation Act 1987 — Issues not fully litigated at trial — Returned to Compensation Court for further hearing.

ORDERS Appeal upheld. Proceeding to be returned to the Compensation Court.

The appellant-employer to pay, as agreed, the costs of the Forestry Commission of New South Wales.

The first respondent-applicant to pay the appellant's costs of this appeal (not to include the costs payable by the appellant to the Forestry Commission) and to have a certificate under the Suitors Fund Act.

Mahoney JA The applicant Mr Earle Arthur Webb has had a long history of work related injuries. By August 1991 he was, because of previous injuries, partially incapacitated. In August 1991 he suffered an injury to his back which, by 31 August 1991, rendered him totally incapacitated.

He sought, inter alia, weekly compensation because of that total incapacity. On 19 November 1993 his Honour Judge Duck awarded the applicant, inter alia, weekly compensation from the relevant date in October 1991 to the date of the award and continuing.

The employer, Mr Vaughan L Chapman, trading as Gundowda Grazing Company, has appealed against that award upon the ground that the weekly compensation has been wrongly calculated.