DEPARTMENT OF SCHOOL EDUCATION v BOYD [1996] NSWCA 152

DEPARTMENT OF SCHOOL EDUCATION v BOYD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and BEAZLEY JJA 15 July 1996, 15 July 1996

[1996] NSWCA 152

WORKERS COMPENSATION — s40 award of weekly compensation — whether expressed intention to engage in work sufficient — s67 award for pain and suffering — whether trial judge took into account irrelevant matters

ORDERS

1. Appeal be dismissed with costs.

Beazley JA This is an appeal from a decision of Judge Moran of the Compensation Court of New South Wales given on 14 November 1995 in which his Honour ordered that the appellant pay to the respondent, on the basis of partial incapacity, weekly compensation at the rate of $50 per week from 12 February 1992; that the appellant pay the respondent, as lump sum compensation under s66, an amount representing 75 percent loss of sight of the respondent's left eye; and further ordering that the appellant pay to the respondent, as lump sum compensation under s67, an amount of $29,640 in respect of pain and suffering.

The appellant appeals against the award of weekly compensation contending that, notwithstanding the admitted work-related injury, the respondent was not entitled to weekly compensation under s40 of the Act. The appellant also appeals against the order under s67 contending that the assessment in the sum of $29,640, which represents a finding that the injury was 60 percent of a worst possible case, was outside a proper discretionary award.

The respondent, who was aged 54 years at the date of injury and 58 at the date of trial, commenced employment on a permanent part-time basis with the appellant on or about 15 July 1991. The nature of his employment was as a farm assistant at Lithgow High School working three days per week.

Prior to about 1988, the respondent had been engaged in full-time employment in the mining industry. After leaving that work he had been unemployed for a period of time. In early 1991 he commenced taking on work of a casual nature and generally of short duration. In particular in January 1991, he did three days work at Invincible Colliery and between 23 March 1991 and 19 April 1991 he was employed at McIlwraith Minerals, apparently either driving a large truck or operating heavy machinery. The respondent also conducted a farming property and was engaged in the day-to-day running and management of the farm. However. in the relevant period, the farm had operated at an annual loss.