North Broken Hill Ltd v Tumes

CITATION:	North Broken Hill Limited v Tumes [1999] NSWCA 309
FILE NUMBER(S):	CA 40334/98
HEARING DATE(S):	06/07/99
JUDGMENT DATE:	27 August 1999
PARTIES :	North Broken Hill Limited Brian Tumes
JUDGMENT OF:	Beazley JA at 1; Giles JA at 27; Davies AJA at 28

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	1417/96
LOWER COURT JUDICIAL OFFICER:	Curtis CCJ

COUNSEL:	Appellant: JD Hislop QC/ G Graham Respondent: A Katzmann SC/ E Techeret
SOLICITORS:	Appellant: Austen Brown, Thompson by their city agents Marshall Marks Kennedy Respondent: Buckworth Ready & Chalker
CATCHWORDS:	Workers Compensation; Injury sustained during employent; Economic loss
ACTS CITED:	Workers Compensation Act 1987 (NSW) Compensation Court Act 1984 (NSW) Workplace Injury Management and Workers Compensation Act 1988 (NSW)
CASES CITED:	Hope v Bathurst City Council (1980) 144 CLR 1 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 J C Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580 Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25 Steggles v Aguirre (1988) 12 NSWLR 693 Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 Kraturn Pty Ltd (t/as Mac's Fruit Centre) v Quinn (unreported, New South Wales Court of Appeal, 28 September 1990)
DECISION:	Appeal Allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40334/98
CC 1417/96

BEAZLEY JA
GILES JA
DAVIES AJA

Friday, 27 August 1999



NORTH BROKEN HILL LIMITED & ORS v TUMES

JUDGMENT

1    BEAZLEY JA: This is an appeal from an ex tempore decision of Curtis CCJ in the Compensation Court. The respondent (applicant before the Compensation Court) was awarded lump sum compensation and weekly compensation payments in respect of injuries sustained during the course of his employment as a miner with the appellants. The appellants appeal against that part of his Honour’s judgment whereby the respondent was awarded weekly compensation payments pursuant to s 40 of the Workers Compensation Act 1987 (NSW). The appeal is limited to a question of law: Compensation Court Act 1984 (NSW), s 32.

Background

2    The respondent worked for the appellant from 1979, when he was twenty years old, until he was made redundant in February 1993 upon the closure of the mine at which he worked. During that period he suffered several injuries, such that by the time he was made redundant, he was, according to the finding of Curtis CCJ, “fit for all but the heaviest forms of work” but “not fit for the heaviest work of a miner”. The respondent had not, until that time, lost any time from work due to his injuries.

3    The respondent was unemployed for a little under two months before he commenced employment as a miner with a Mr De Bruin on 1 April 1993. He earned $800 per week in that employment.…