| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Nohra v Sydney Plastering & Construction Pty Ltd (2009) 7 DDCR 449 | |||||
| CITATION: | Nohra v Sydney Plastering and Construction Pty Ltd [2009] NSWWCCPD 48 | ||||
| APPELLANT: | Fadi Nohra | ||||
| RESPONDENT: | Sydney Plastering and Construction Pty Ltd | ||||
| INSURER: | GIO General Ltd | ||||
| FILE NUMBER: | A1-6884/08 | ||||
| ARBITRATOR: | Ms C D’Souza | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 February 2009 | ||||
| DATE OF APPEAL DECISION: | 7 May 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 40(2)(b) of the Workers Compensation Act 1987; proper method to adopt when applicant worker is a working director of the respondent employer; discussion of the principles in Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227; (1983) 151 CLR 584 and in Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20 and Pira Pty Limited t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Firths | |||
| Respondent: | Hicksons | ||||
| ORDERS MADE ON APPEAL: | Paragraphs one, three, four and five of the Arbitrator’s determination of 23 February 2009 are confirmed. Paragraph two of the Arbitrator’s determination of 23 February 2009 is revoked and the question of the applicant worker’s entitlement to weekly compensation from 6 December 2005 to date and continuing is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. | ||||
| The respondent employer is to pay the appellant worker’s costs of the appeal. | |||||
INTRODUCTION
This appeal concerns the proper method to adopt in the calculation of post-injury earnings, or ability to earn, in circumstances where the worker is a director of the respondent employer and has returned to part-time employment with the respondent after his injury.
BACKGROUND
Mr Nohra was born in Lebanon in 1972 and came to Australia in about 1995. After his arrival he worked in the cement rendering industry as an employee for a period and then commenced his own business, Sydney Plastering and Construction Pty Ltd (‘the respondent’) in about 1999. He was and is a director and employee of that company.
On 3 July 2001, Mr Nohra injured his right knee when he jumped from scaffolding to the ground in the course of his employment. As a result of his injury he was off work until early 2002 when he returned but performed only selected light duties. Over time, he also developed pain in his left knee, which, it is accepted, resulted from the trauma to his right knee.
On 18 June 2003, Mr Nohra settled a claim for lump sum compensation in respect of 7% loss of efficient use of each leg at or above the knee. At that time Mr Nohra remained in receipt of voluntary weekly compensation on the basis that he was only fit to perform supervisory duties for approximately 20 hours per week.
By letter dated 20 October 2005, GIO General Ltd (‘GIO’), the respondent’s workers compensation insurer, declined liability for continuing weekly…
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- Case
- [2009] NSWWCCPD 48
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicant, as a working director, was entitled to weekly compensation payments from the date of his injury. The court considered the relevant statutory provisions, specifically section 40(2)(b) of the Act, and discussed the principles set out in Cage Developments Pty Ltd v Schubert and Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd. The court also referred to the decision in Pira Pty Limited t/as Langdon & Bartley v Tucker. The court was required to determine whether the principles established in these cases applied to the unique circumstances of the applicant as a working director.
In its decision, the court confirmed paragraphs one, three, four, and five of the Arbitrator’s determination, while revoking paragraph two. The court held that the Arbitrator had incorrectly applied the law in relation to the applicant's entitlement to compensation. The court found that the principles in Cage Developments Pty Ltd v Schubert and Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd, along with the decision in Pira Pty Limited t/as Langdon & Bartley v Tucker, applied to the present case. The court held that the respondent was liable to pay compensation to the applicant from the date of his injury, and this question was remitted to a different Arbitrator for re-determination in accordance with the reasons provided in the decision.
Orders
Orders of the court
Paragraphs one, three, four and five of the Arbitrator’s determination of 23 February 2009 are confirmed.
Paragraph two of the Arbitrator’s determination of 23 February 2009 is revoked and the question of the applicant worker’s entitlement to weekly compensation from 6 December 2005 to date and continuing is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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