Nohra v Sydney Plastering and Construction Pty Ltd - [2009] NSWWCCPD 48

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…

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.

Keep reading for free

Create a free CaseChat account to read Nohra v Sydney Plastering and Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWWCCPD 48
Decision Date: 7 May 2009

CaseChat Overview and Summary

Nohra v Sydney Plastering and Construction Pty Ltd is a case before the NSW Supreme Court concerning a dispute regarding workers' compensation. The applicant, Mr Nohra, was a working director of the respondent company, Sydney Plastering and Construction Pty Ltd. He claimed entitlement to workers' compensation from the date of his injury on 23 November 2005, continuing to the present day. The respondent contested the applicant's entitlement to compensation, arguing that it was not liable to pay compensation to a director of the company under the Workers Compensation Act 1987.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.