Kajic v Hawker De Havilland Aerospace Pty Ltd

In the matter of Kajic v Hawker De Havilland Aerospace Pty Ltd, the dispute centred around the interpretation and application of Section 60AA(3) of the Workers Compensation Act 1987, specifically concerning the compensation payable for gratuitous domestic assistance provided to an injured worker. The case was heard by the Supreme Court of New South Wales.

The legal issues before the court involved the proper interpretation of Section 60AA(3) and the extent to which it should be read in conjunction with the ‘WorkCover Guidelines for the Provision of Domestic Assistance’ dated 15 October 2004. The primary contention was whether the compensation for such assistance should be limited by the guidelines and if the compensation was to be determined by lost income or the value of forgone employment by the care provider.

The court held that Section 60AA(3) is an evidentiary threshold to the entitlement for compensation of gratuitous domestic assistance. When interpreted alongside the WorkCover Guidelines, it imposes a maximum level of compensation payable to the carer, which is limited by clause 7.4 of the Guidelines. However, the court clarified that this compensation is not determined by the amount of any lost income or the value of forgone employment sustained by the care provider. The court thus provided clarity on the legislative intent and the role of the guidelines in determining compensation.

The orders of the court were that the Respondent is to pay the Applicant’s costs of the referral of the Question of Law and that the WorkCover Authority of New South Wales is to pay its own costs.