ALCAN AUSTRALIA LTD v PHILLIPS [1997] NSWCA 12

ALCAN AUSTRALIA LTD v PHILLIPS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and BEAZLEY JJA, and GROVE AJA 7 April 1997, 1 May 1997

[1997] NSWCA 12

Workers Compensation — total incapacity — lack of evidence — error in approach to amounts entered.

FACTS

The respondent workers employment was terminated on 23 December 1994, the recommendation from his doctor was "fit for light duties" and from July 1995 he has successfully run his own business. The findings of the trial judge were total incapacity from 24 December 1994 through to July 1995, which the appellant challenges for lack of evidence. The trial judge entered awards for this period without giving reasons, which the appellant also challenges.

HELD

(1) The Respondent conceded the ground of appeal challenging his Honour's finding of total incapacity, and there was much evidence that his Honour's finding was erroneous and unsubstantiated.

(2) The figures entered are plainly wrong and the error is compounded by a lack of reasoning by his Honour.

Meagher JA This was an appeal by an employer, Alcan Australia Limited, against orders made by Maguire CCJ in the Compensation Court in favour of a worker, the present respondent, Mr B.D. Phillips.

The facts of the case which are relevant to this appeal can be stated in two propositions: first, at the time when the worker's employment was terminated (23 December 1994) his own general practitioner, who was the only doctor whose evidence was before the Court, certified him as "fit for light duties"; and secondly, from July 1995 onwards he has conducted his own business, which is extremely successful and in which he works at least five days a week.

His Honour found that the worker was totally incapacitated for employment from 24 December 1994 to 10 July 1995. His Honour's precise findings and awards are: