Lloyd v Norther Rivers Charity Racing Association [2001] NSWCC 49

Reported Decision : (2001) 22 NSWCCR 577

Compensation Court of New South Wales

CITATION : Lloyd v Norther Rivers Charity Racing Association [2001] NSWCC 49 revised - 29/05/2001 PARTIES : Bronwyn Kimberley Lloyd The Northern Rivers Charity Racing Association MATTER NUMBER(S) : 12698/96 JUDGMENT OF: Walker J at 1 CATCHWORDS: Statutes & Delegated Legislation :- Calculation of average weekly earnings of jockeys Novice and casual workers. Applicatio of principle in NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217 LEGISLATION CITED: Sch 1 Pt 9 Cl (3)(b) 1998 Act, 1987 Act s 37(1)(a), s 37(1)(a)(i), s 37(1)(a)(ii), s 37(1)(a)(iii), s 42(1)(d), s 43(1)(e), s 43(1)(f) CASES CITED: DATES OF HEARING: 16/6/98, 28/9/98, 29/9/98, 30/9/98, 13/10/98, 17/11/98, 18/11/98, 21/3/99, 17/8/99, 19/8/99, 20/8/99, 20/12/99, 21/12/99, 22/5/00, 23/5/00, 24/5/00, 4/10/00 DATE OF JUDGMENT: 05/09/2001

FOR APPLICANT: Mr H Bauer instructed by McLellands Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr C Branson QC with Mr R Gambi instructed by McCabes and then Hunt and Hunt Solicitors

JUDGMENT: The Claim 1. The Protective Commissioner as manager of the estate and tutor of Kim Lloyd claims on her behalf weekly benefits pursuant to s 36 and 37 of the 1987 Act. The basis of the claim is that arising out of and in the course of her employment as a jockey by the respondent on the 17 January 1993 the applicant fell from a horse sustaining permanent brain damage and extensive orthopaedic injuries which rendered her totally incapacitated for work. The Issues 2. The respondent does not dispute injury or that Kim Lloyd is totally incapacitated for work. However the appropriate manner in which the s 36 and s 37 entitlements should be assessed is in contention. THE COMPETING SUBMISSIONS A. S 36 1. The Workers Case