The Zinc Corporations Ltd v Robbins

CITATION:	The Zinc Corporations Ltd v Robbins [1999] NSWCA 194
FILE NUMBER(S):	CA 40372/98
HEARING DATE(S):	16/04/99
JUDGMENT DATE:	16 April 1999
PARTIES :	The Zinc Corporation Donald George Robbins
JUDGMENT OF:	Handley JA at 24; Powell JA at 25; Beazley JA at 1

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	22017/95
LOWER COURT JUDICIAL OFFICER:	Curtis CCJ

COUNSEL:	Appellant: J D Hislop QC/J Doak Respondent: R F Wilkins
SOLICITORS:	Appellant: Bartier Perry Respondent: Doyle Kingston & Swift
CATCHWORDS:	Workers Compensation - meaning of "employment" - effect of voluntary redundancy - loss of weekly earnings - judicial discretion
ACTS CITED:	Workers Compensation Act 1987 (NSW)
CASES CITED:	Johnston v Commissioner of Railways (1973) 128 CLR 632 O'Loughlin v The Zinc Corporation Limited (unreported, New South Wales Court of Appeal, 21 December 1989) Novello v Zinc Corporation Limited (1988) 14 NSWLR 25
DECISION:	Appeal Dismissed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40372/98
CC 22017/95

HANDLEY JA
POWELL JA
BEAZLEY JA

Friday, 16 April 1999

THE ZINC CORPORATION v ROBBINS

JUDGMENT

1 BEAZLEY JA: This is an appeal on a question of law from a decision of Curtis CCJ, in which his Honour awarded the respondent weekly compensation for partial incapacity from 28 July 1995 and continuing under s 40 of the Workers Compensation Act 1987 (NSW). The appeal is limited to a question of law: s 32 of the Act.
2 The respondent had been employed in the mining industry since 1975. Relevantly he sustained two injuries whilst in the employment of the appellant. The first occurred on 31 December 1991. He suffered injury to his right knee when he jumped from his loader some distance to the ground after preparing some explosives in the basket of the loader. This injury resulted in a derangement of the structures of the knee. The second injury occurred on 23 March 1995 when the respondent suffered injury to his back whilst driving a dump truck that hit a bump in the road, jarring his back. Since that injury the respondent has had continuing pain and restriction of movement in his back.
3 The trial judge held that before his knee injury in 1991 the respondent had been working as a dump truck driver because that was the particular work to which he had been assigned by the appellant. He continued to work as a dump truck driver in the employment of the appellant up until the time he left the industry in 1995.
4 Notwithstanding that that was the particular work that the respondent was doing, his Honour implicitly found that the he was employed as a miner, and in respect of that work made findings as to its heavy and arduous physical nature.
5 In about July 1995 the respondent accepted a voluntary redundancy package with the intention of commencing a haulage business on his own account. That package was in the order of $112,000.
6 The haulage business was not successful and he fruitlessly…