Farrell v Metromix Pty Ltd

[2001] NSWCA 166

CITATION:	Farrell v Metromix Pty Limited [2001] NSWCA 166
FILE NUMBER(S):	CA 40199/00
HEARING DATE(S):	29 May 2001
JUDGMENT DATE:	8 June 2001
PARTIES :	John Farrell v Metromix Pty Limited
JUDGMENT OF:	Stein JA at 1; Hodgson JA at 33; Ipp AJA at 34

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 33608/98
LOWER COURT JUDICIAL OFFICER :	Moran CCJ

COUNSEL:	Appellant - L King SC/D T Kell Respondent - C Hoeben SC/D Priestley
SOLICITORS:	Appellant - W G McNally & Co Respondent - Sparke Helmore
CATCHWORDS:	WORKERS COMPENSATION - The Worker's Compensation Act 1987 - exercise of discretion imposed by s 40(1) - whether non injury factors can be taken into account when determining loss of earning capacity - ND
LEGISLATION CITED:	Worker's Compensation Act 1987
CASES CITED:	Australian Iron and Steel v Elliott (1966) 67 SR (NSW) 87 Australian Wheat Board v Pantaleo (1984) 3 NSWLR 350 Australian Wire Industries Limited v Nicholson (Unreported, Court of Appeal, 4 February 1985) J C Ludowici & Son Pty Limited v Cutri (1992) 26 NSWLR 580 Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 Kraturn Pty Limited v Quinn (1990) 6 NSWCCR 326 Malco Engineering v Ferreira (1994) 10 NSWLR 117 Mitchell v Central West Health Service [1997] 14 NSWCCR 527
DECISION:	1. Appeal allowed with costs. 2. Award of weekly compensation under s 40 of the Worker's Compensation Act 1987 set aside. 3. There be substituted therefor an award in favour of the appellant pursuant to s 40 of the Act of $75 per week from 15 July 1997 to 11 June 1999. 4. The issue of the amount of weekly compensation payable post 11 June 1999 be remitted to the Compensation Court for determination according to law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40199/00
CC 33608/98

STEIN JA
HODGSON JA

IPP AJA

Friday, 8 June 2001

John FARRELL v METROMIX PTY LIMITED


Facts:

The appellant was involved in a motor vehicle accident when employed by the respondent as a truck driver. As a result of the accident he suffered neck and back pain At the time of the accident the appellant was working significant overtime. Commissioner Hogg of the Compensation Court assessed the appellant’s loss of earnings utilising the discretion conferred by s 40(1) of the Workers Compensation Act 1987. He accepted that the reduction in earnings following the accident was not entirely due to the appellant’s injury, but also resulted from an attitudinal shift on the part of his employer with respect to the allocation of overtime. An appeal to a judge of the Compensation Court was dismissed. The appellant complains that the Commissioner’s discretion miscarried and further, that he gave no reasons to indicate those factors he regarded as relevant to the discretion.

Held:

Per Stein JA, Hodgson JA and Ipp AJA agreeing:

1) The loss of income caused by a change in the employer’s attitude with respect to offering the appellant overtime was…