Andrew Lyristakis v Argus Real Estate Holdings Pty Limited t/as Ray White (Belconnen)

[2001] ACTSC 101

ANDREW LYRISTAKIS v ARGUS REAL ESTATE HOLDINGS PTY LIMITED t/as RAY WHITE (BELCONNEN) [2001] ACTSC 101 (1 November 2001)

CATCHWORDS

APPEAL – application for worker’s compensation – whether finding of partial incapacity necessarily implicit in acceptance of evidence contained in medical reports – whether adequate evidence of wages paid by respondent during the time of the appellant’s employment – whether adequate evidence of earnings and/or capacity to earn following cessation of employment.

Workers’ Compensation Act 1951, s 7, Sch 1

Frost v Mark Foys Ltd (1952) 52 SR (NSW) 95
Woden Valley Glass v Psaila (1993) 44 FCR 140

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 36 of 2001

Judge:          Crispin J
Supreme Court of the ACT
Date:           1 November 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCA 36 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:ANDREW LYRISTAKIS

Appellant

AND:ARGUS REAL ESTATE HOLDINGS PTY LIMITED t/as RAY WHITE (BELCONNEN)

Respondent

ORDER

Judge:  Crispin J
Date:  1 November 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The order dismissing the appellant’s application for compensation be set aside.

1. The matter be remitted to the Magistrates Court for determination according to law of the amount, if any, that should be paid to the appellant as compensation for the partial incapacity caused by the stress and depressive illness which developed during the course of his employment with the respondent.

1. This is an appeal against a decision of a Magistrate dismissing a claim for compensation under the Workers’ Compensation Act 1951.  The appellant had been employed by the respondent in a real estate business in Canberra between February 1998 and February 1999.  He sought compensation for a continuing incapacity for work said to have been due to stress and a depressive illness which developed during the course of that employment as the result of the demands placed upon him and difficulties in his relationship with another employee.

1. Her Worship accepted there may have been some tension and friction between the appellant and the employee.  However she found that some of his complaints had related to petty and trivial incidents and she did not accept his evidence in relation to others.  In particular, she found that the other employee had not attempted to overload the appellant with work or sabotaged the computer as he had claimed, though she did accept that he had believed she had done so.  Her Worship accepted the evidence contained in the medical reports of Doctors Middlemiss, Scott, Knox and Carlson and found that the appellant had suffered an injury, consisting of stress and a depressive illness, which arose out of, or in the course of, his employment with the respondent.

1. Her Worship was not satisfied that the appellant had been totally incapacitated for work since 26 February 1999 when his employment with the respondent ended.  She noted that there had been a general consensus from medical practitioners and psychologists that he should not return to work with the respondent, which had in…