NEILSEN v LACHLEY MEATES (FORBES) PTY LTD [1998] NSWCA 156

NEILSEN v LACHLEY MEATES (FORBES) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Mason P, COLE and STEIN JJA 6 May 1998, 15 May 1998

[1998] NSWCA 156

Workers Compensation — partial incapacity — proper exercise of discretion under s40(1)

Mason P I agree with Stein JA. Cole JA I agree with Stein JA.

Stein JA This appeal concerns a claim for compensation for partial incapacity for work for 4 days in April 1994. The appellant worker was a boner and slicer employed by the respondent, Lachley Meats (Forbes) Pty Ltd. He left work in the afternoon of 19 April 1994 and went to his doctor. The medical practitioner gave him a certificate for restricted duties. Armed with the certificate, he attended work on 20 April and asked for suitable duties. He was not given any work because the boners and slicers went out on strike over an industrial grievance. Mr Neilsen agreed that if he had been uninjured, he would not have worked during the strike. Curtis CCJ found:

I have to weigh his evidence of a preparedness to work on light duties when uninjured during the time when his mates were on strike against the objective probabilities and I do not find him convincing.

I believe that he probably would have, commendably, remain [sic] steadfast with his workmates in their action for better industrial conditions. (AB 35 W-Y)

The claim before the Compensation Court was one under s38 and s38A of the Workers Compensation Act 1987 (the Act). His Honour dismissed this claim. While an appeal was launched against this conclusion, it was not pressed at the hearing of the appeal.

At the heel of the hunt before Curtis CCJ it appears that an alternative submission was made which was based on s40 of the Act. No amendment to the application was sought or made. His Honour dealt with the matter thus:

In the alternative, while not expressed in the Application for Determination, he may have perhaps pressed a claim pursuant to s40 of the Act. S40 requires that I find the amount which the worker would probably have been earning but for the injury and deduct from that in the first step the amount which the worker would have been able to earn in his injured condition. It seems to me that upon the worker's evidence that which he would have been earning but for the injury is manifestly nil. In any event, were it not so and there were a mathematical difference between what the worker was able to earn and that which he would have been earning but for the injury, the amount is to bear such relation to the circumstances as may appear proper in the present case and in all the circumstances I do not think it proper that the worker should receive payments pursuant to compensation statute when his workmates otherwise similarly placed received nothing in respect of the days in respect of which he claims. (AB 36 E-I)