LAWRENCE v CARROLL [1998] NSWCA 129

LAWRENCE v CARROLL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

5 PRIESTLEY, HANDLEY and POWELL JJA 27 November 1998, 18 December 1998

[1998] NSWCA 129 WORKERS COMPENSATION ACT 1926, s11(1)(a) — WEEKLY PAYMENTS

WORKERS COMPENSATION ACT 1926 s11(1)(A) — WEEKLY PAYMENTS — Respondent brought a compensation claim for partial incapacity to which s11(1)(a) of the Workers Compensation Act 1926 applied — the judge made an award being the "difference" he found between the probable amount the worker would have earned uninjured and the amount the worker was earning or was able to earn after injury, without either reducing the amount of the "difference" or explaining why he awarded it without reduction — interest also was awarded.

20 On appeal the appellant submitted:

1. The trial judge erred in law in his application of s11(1)(a) and his subsequent order granting weekly payments to the respondent.

2. Pursuant to a ground of appeal raised for the first time in the course of the oral argument, that because of the repeal of s19 of the compensation Court Act and the enactment of s113 of the 1987 Act, the trial judge was not entitled to grant interest on the awards he made for any period before March 1996.

Held:

1. The trial judge's reasoning, coupled with the impossibility on the evidence to estimate the worker's after injury amount for the period from | June 1981 to 9 April 1984, indicated an incomplete application of s11(1)(a) amounting to an error of law, requiring 30 anew trial;

2. contrary to the authorities, the trial judge gave no explanation as to why he considered it proper to award the difference, under s11(1)(a), without a reduction; in the circumstances, this also was an error of law;

3. if the issue as to the award of interest had been appropriately presented in this appeal,

35 the court may have been able to determine it as a matter of law however, this new point should not only be decided once it has been considered, in light of all possible material facts, by the trial court at the new trial;