BURNELL AND HAILS (t/as BLINK BONNIE) v SMITH [1996] NSWCA 80

BURNELL AND HAILS (t/as BLINK BONNIE) v SMITH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 30 January 1996 [1996] NSWCA 80

Worker's Compensation Act 1987 — s 40 — Judge replacing evidence of earnings and deductions with his own impression — held impermissible.

Cole JA. This appeal from the judgment of Judge Burke delivered 1 December 1992 in the Compensation Court of New South Wales raises two issues:

1. Whether there was evidence to support a finding by his Honour made in accordance with s 40(2)(a) Worker's Compensation Act 1987 that the "weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment" was $450 per week;

2. whether his Honour correctly calculated the s 67 entitlement for pain and suffering having regard to his Honour's findings that the respondent's pain and suffering "is proportionate to that of a most extreme case in the ratio between | is to 4 and 2 is to 3"!

FACTS

The respondent, Michael Smith, was born on 23 December 1947. At the time he suffered the accident on 1 October 1991, and for some years prior, the respondent worked as a shearer on properties in the Walcha district. On 1 October 1991 he injured his right wrist whilst so engaged. As a result of the injury the trial judge found he was incapacitated and unable to continue in the shearing industry.

The respondent tendered his tax returns for the years ended 30 June 1989, 1990 and 1991 as evidence of his uninjured earning capacity. During 1989 he apparently worked for a timber company, Taminda Timbers Pty Ltd, as well as working as a shearer.2 The evidence before the trial judge relating to his uninjured earning capacity was as follows:

YEAR GROSS DEDUCTIONS NET AVE NETDAYS WORKED