COWRA SHIRE COUNCIL v QUINN [1996] NSWCA 127

COWRA SHIRE COUNCIL v QUINN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 21 May 1996, 21 May 1996

[1996] NSWCA 127 WORKERS' COMPENSATION — earning capacity — accessible labour market.

On 23 July 1993 and subsequent to a compensable injury, the respondent was made redundant by the appellant. The trial judge found that the worker's probable earnings uninjured were $813.55 per week comprising $583.20 from the Council and $230.21 from a weekend contracting business. He found that in his partially incapacitated condition he would earn in suitable employment $500 per week. He awarded the statutory maximum of $292.60. His Honour held that the worker's injuries left him with an inhibition on the general labour market. The appellant contended that the amount assessed for the worker S post-injury earning capacity was manifestly inadequate and that the matter should be returned to the Compensation Court to determine the proper earnings figure. It was further argued that compensation should not be increased because of inability to earn caused by the non-availability of work.

HELD: dismissing the appeal: (1) Capacity to earn is to be determined by reference to the worker's ability to earn in the general labour market accessible to the worker: Workers Compensation Act 1987 s40 (3): Mangion v Visy Board Pty Ltd (1991) 8 NSWCCR 175 followed; (2) The judge made no error in the assessment and was well placed to make the determination: Australian Iron and Steel v Elliot [1967] NSWLR 87 followed.

Handley JA

This is an appeal by the Cowra Shire Council against an award by Bishop CCJ made under s40 of the Workers' Compensation Act 1987. The issues which have been argued in the appeal fall within a narrow compass. Employment, injury and incapacity were not disputed.