Freightcorp v Duncan

[2000] NSWCA 309

CITATION:	FREIGHTCORP v DUNCAN [2000] NSWCA 309
FILE NUMBER(S):	CA 40998/99
HEARING DATE(S):	6 October 2000
JUDGMENT DATE:	1 November 2000
PARTIES :	FREIGHTCORP (Appellant) v STEPHEN JAMES DUNCAN (Respondent)
JUDGMENT OF:	Handley JA at 1; Beazley JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	40880/99
LOWER COURT JUDICIAL OFFICER :	Armitage CCJ

COUNSEL:	A: Mr G M Watson, Mr M H Best R: Mr M B Inglis
SOLICITORS:	A: Sparke Helmore R: Commins Hendriks
CATCHWORDS:	Workers' Compensation - redundancy - whether, by accepting offer of redundancy, the worker rejected suitable employment - whether the worker's action was unreasonable - meaning of "obtains suitable employment" discussed but not determined.
LEGISLATION CITED:	Workers Compensation Act 1987, s 40 Compensation Court Rules, Pt 11 r 3
CASES CITED:	Fazlic v Milingimbi Community Inc. (1982) 150 CLR 345
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40998/99
CC 40880/99

HANDLEY JA
BEAZLEY JA
DAVIES AJA

Wednesday 1 November 2000


FREIGHTCORP v Stephen James DUNCAN


JUDGMENT

1    HANDLEY JA: I agree with Davies AJA.

2    BEAZLEY JA: I agree with Davies AJA.

3 DAVIES AJA: This appeal is from an award of the Compensation Court of New South Wales constituted by his Honour Judge Armitage. Under s 32 of the Compensation Court Act, 1984, the appeal is limited relevantly to a point of law.

4    Relevant provisions of the Workers Compensation Act, 1987 ("the Act") provide as follows:

40 (1) Entitlement . The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker's weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.

(2) Calculation of reduction in earnings of worker - general . The reduction in the worker's weekly earnings is (except as provided by this section) the difference between:

(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and

(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).
(2A) Calculation of reduction in earnings of worker - workers rejecting suitable employment. If the worker has unreasonably rejected suitable employment, the reduction in the worker's weekly earnings is the difference between:

(a) the current weekly wage rate for the worker's pre-injury employment (but not exceeding $1,000), and

(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).
(2B) For the purposes of subsection (2A), a person unreasonably rejects suitable employment if:

(a) a period…