BHP Steel v Oliver

CITATION:	BHP Steel v Oliver [2002] NSWCA 76
FILE NUMBER(S):	CA 40320 of 2001
HEARING DATE(S):	15/03/02
JUDGMENT DATE:	3 April 2002
PARTIES :	BHP Steel (AIS) Pty Limited v Kim John Oliver
JUDGMENT OF:	Meagher JA at 1; Giles JA at 12; Ipp AJA at 31

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	40228 of 1999
LOWER COURT JUDICIAL OFFICER :	Bishop J

COUNSEL:	A: Mr J Hislop QC with Mr G Levick R: Mr J Little SC with Mr B Ingram
SOLICITORS:	A: Sparke Helmore R: Maguire & McInerney
CATCHWORDS:	Section 11 of the Workers' Compensation Act 1926 - whether respondent was capable of earning his full pre-injury wage and therefore no award should have been made - whether award calculated by trial judge could be justified - appeal dismissed with costs.
LEGISLATION CITED:	Workers' Compensation Act 1926 Workers' Compensation Act 1987 Coal Mines Regulation Act 1982 Compensation Court Act 1984
CASES CITED:	Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR 20 Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 Australian Iron & Steel Pty Ltd v Elliott (1967) 67 SR (NSW) 87 Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412 Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25 Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530
DECISION:	Appeal dismissed with costs.

CA 40320 of 2001

MEAGHER JA
GILES JA
IPP AJA

Wednesday, 3 April 2002

BHP STEEL (AIS) PTY LTD v KIM JOHN OLIVER

FACTS

The respondent, Mr Oliver, was awarded workers compensation by the primary judge in relation to a back injury, which he suffered whilst in the employ of the appellant, BHP Steel. His psychological claim however, was found on the evidence not to be work-related. At trial, the primary judge calculated an award according to the three steps enquiry required under section 11(1) of the Workers’ Compensation Act 1926. On appeal, it was contended that the primary judge erred in law because it was not open to his Honour to find that the worker had suffered any economic loss as a result of his back injuries.

HELD

Per Meagher JA (Ipp JA agreeing)

(i) The test for “economic loss” should not be construed narrowly. Because there is no immediate loss in the respondent’s former sphere of employment, does not mean that there is no economic loss; Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 Per Latham CJ at 130-131.

(ii) The primary judge correctly calculated the economic loss suffered by the worker from his partial disability on the open labour market. That some supervening, non work-related disability intervened to aggravate that disability is not to the point; Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR 20 Per Jordon CJ at 25.

Per Giles JA (Ipp JA agreeing)

(i) It does not matter that the worker left the employer’s employment because of his psychological condition, provided…