Workers' Compensation (N.S.W.)—Injury to worker—Partial incapacity—Computation of amount—Weekly payment—No evidence of amount of actual earnings during incapacity—Mode of determining amount worker "able to earn"—Workers' Compensation Act 1926 (N.S.W.), s. 11(1)(a).
Decision
October 13. THE COURT delivered the following written judgment:- On this appeal, brought by special leave, the appellant sought to raise two main submissions, the first of which was that it was wrong to award workers' compensation for total incapacity in respect of a period during which the respondent, although unable to work, was receiving moneys from a business. However, the special leave has been rescinded in so far as it related to that question and the remaining question is whether the Workers' Compensation Commission of New South Wales (Judge Westcott) adopted an erroneous approach to the determination of the respondent's actual or potential earnings during a period of partial incapacity in respect of which he claimed compensation under the Workers' Compensation Act 1926 (N.S.W.) ("the Act"). At the time the respondent sustained the incapacitating injury, he was employed by the appellant as the driver of a machine known as a concrete agitator. During the relevant period of partial incapacity, the respondent and his wife carried on, in partnership, a business of carting fuel in a road tanker which was owned by the partnership and ordinarily driven by the respondent. (at p586)
2. Section 11(1)(a) of the Act provides that, in a case of partial incapacity, the weekly payment of compensation shall in no case exceed the difference between "the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment" and "the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury". The appellant submits that, in a case such as the present where an injured worker has commenced, either alone or in partnership, to carry on a business in which he is actively working, the "average weekly amount he is earning" to which s. 11(1)(a) refers is the amount of the net earnings of the business discounted, "on appropriate evidence", to allow for factors such as the "earnings" of others and a return on invested capital. Judge Westcott refused to adopt that approach to the determination of actual or potential earnings in the present case. His Honour assessed compensation on the basis that the relevant "average weekly amount" was to be ascertained, for the purposes of s. 11(1)(a), by considering what services the worker actually performed in the business and what those services would have been worth if, instead of serving himself, he had been serving an employer or, put in another way, what he would have had to pay another for those services (Willis's Workmen's Compensation Acts,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cage Developments Pty Ltd v Schubert [1983] HCA 37
Case
[1983] HCA 37
Decision Date
CaseChat Overview and Summary
Cage Developments Pty Ltd (the appellant) and Mr Schubert (the respondent) were parties to a dispute concerning a contract for the sale of land. The case was heard by the High Court of Australia. The central issue revolved around whether the respondent had validly terminated the contract due to the appellant's alleged breach of a condition precedent.
The High Court was required to determine whether the condition precedent, which stipulated that the respondent must obtain finance on terms satisfactory to himself, had been fulfilled or waived. Specifically, the court had to consider whether the respondent's conduct amounted to a genuine attempt to obtain finance and whether his dissatisfaction with the terms offered was bona fide. The court also had to consider the legal effect of the respondent's purported termination of the contract.
The High Court held that the respondent had not acted in good faith in his attempts to obtain finance. His Honour Gibbs C.J. found that the respondent had not made reasonable efforts to secure the necessary funds and that his dissatisfaction with the terms offered was not genuine. The court applied the legal principle that a party seeking to rely on a condition precedent must act honestly and reasonably in attempting to satisfy it. As the respondent had failed to do so, he was not entitled to terminate the contract.
Consequently, the High Court allowed the appeal, finding that the contract remained on foot and that the respondent had wrongfully repudiated it. The court ordered that the appeal be allowed with costs.