COB SUPPLY CO PTY LTD v GIBSON [1996] NSWCA 107

COB SUPPLY CO PTY LTD v GIBSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, COLE and BEAZLEY JJA 28 November 1996, 28 November 1996

[1996] NSWCA 107

Workers' Compensation — S11(1) Workers Compensation Act 1926 — Process of assessment to be undertaken by trial judge — Multiple by trail judge — multiple earnings from concurrent employers — worker's earnings from rugby league.

Clarke JA Mr Kerry Gibson, the respondent, was injured while working for the COB Supply Company Pty Ltd, the appellant, during the course of his employment on 12 December 1980. He received a fairly serious injury to his lower back which left a disability which extended over many years. That disability flowed from what his Honour accepted was a subluxation of the sacroiliac joint. The injury happened just prior to Christmas, as I have pointed out, but in the winter of each of the preceding years the respondent had played Rugby League and earned $1500 on each of those years for playing that game. He played with the Clarence River District Club. He was paid workers' compensation in respect of the months leading up to October 1981, but then his compensation payments were terminated.

He brought a claim for further compensation upon the basis that he was suffering from partial incapacity. He based his claim on two heads. First, he said that he was not able to earn as much as he otherwise would in his ordinary employment as a picker or casual labourer working for the appellant. Secondly, he said that as a consequence of the injury he was partially incapacitated for playing Rugby League and therefore was unable to earn as much as he otherwise would have in that sport. His Honour rejected the first basis of the claim but upheld the second. In his judgment his Honour identified the issues which were contested in these terms.