Wakeling v Qantas Airways Ltd - [2008] NTMC 75

CITATION: [2008] NTMC 075

PARTIES: PAUL WAKELING

QANTAS AIRWAYS LIMITED

TITLE OF COURT: Work Health

JURISDICTION: Workers Rehabilitation and Compensation Act

FILE NO(s): 20808628

DELIVERED ON: 3 December 2008

DELIVERED AT: Darwin

HEARING DATE(s): 6 & 7 November 2008

JUDGMENT OF: Mr Daynor Trigg SM

CATCHWORDS:

Workers Rehabilitation and Compensation Act – s49(1)
“Normal Weekly Earnings” – whether includes concessional air travel for worker – whether includes concessional air travel for worker’s “beneficiaries”
Fox v Palumpa Station Pty Ltd [1999] NTMC
Murwangi Community Aboriginal Corporation v Caroll [2001] NTSC 85;
Murwangi Community Aboriginal Corporation v Caroll [2002] NTCA 9;
Normandy NFM Ltd v Turner (2003) 180 FLR 212;
Hastings Deering (Australia) Ltd v Smith [2004] NTCA 13;
HWE Contracting Pty Ltd v Young, and Newmont Australia Limited v Kastelein [2007] NTSC 42

REPRESENTATION:

Counsel:
Worker: Mr Morris
Employer: Mr Walsh QC

Solicitors:
Worker: Ward Keller Lawyers
Employer: Hunt & Hunt

Judgment category classification: A
Judgment ID number: [2008] NTMC 075
Number of paragraphs: 126

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20808628
[2008] NTMC 075

BETWEEN:

PAUL WAKELING
Worker

AND:

QANTAS AIRWAYS LIMITED
Employer

REASONS FOR DECISION

(Delivered 3 December 2008)

Mr Daynor Trigg SM:
1. This proceeding commenced on 26 March 2008 when the worker filed a Form 5A application in this Court seeking an “order in respect of claim for compensation under Part V or determination of dispute between worker and employer following mediation under Part VIA”.
2. A certificate of mediation was filed with the Court stating that a conference was held between the worker and the insurer on 10 March 2008 and the “outcome” was “no change”.
3. The first pleading in this matter was filed on 8 May 2008, but was subsequently amended. At the time of hearing the worker had filed an Amended Particulars of Claim (on 15 May 2008) but at the commencement of the hearing I granted leave (without objection) for the worker to file in Court a Further Amended Particulars of Claim. This pleading (including typographical mistakes) was as follows:
1. The worker’s date of birth is 31 January 1951.
2. At all material times the worker was employed by the employer as a airline services operator at Darwin Airport Ramp Services.
3.1 The worker sustained a right knee injury during the course of employment with the employer on or about 20 April 2002 (“the first injury”).
3.2 The worker made a Work Health Claim relating to the first injury.
3.3 The employer accepted the worker’s first injury Work Health Claim.
4. The worker sustained a left knee injury during the course of the employment with the employer on or about 1 October 2006 (“the second injury”).
4.1 The made a Work Health Claim relating to the second injury.
4.2 The employer accepted the worker’s second injury Work Health Claim.
5. In relation to the first injury, the worker after a period of total incapacity recommenced light (modified) duties with…

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 Wakeling v Qantas Airways 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: [2008] NTMC 75
Decision Date: 3 December 2008

CaseChat Overview and Summary

In the Work Health Court, the case of Wakeling v Qantas Airways Ltd involved a dispute over the worker's normal weekly earnings (NWE) for the purpose of determining his compensation entitlement under the Work Health Act. The worker, Paul Wakeling, claimed that concessional airfares provided by his employer, Qantas Airways Limited, should be included in his NWE. The court considered whether these concessional airfares were part of the worker's remuneration and, if so, their monetary value. The court examined the Employment Bargaining Agreement and the Qantas policy on concessional travel, concluding that the policy was a unilateral benefit extended by the employer and not part of the worker's remuneration package. The court found that the concessional airfares were not a reward for services rendered on a weekly basis but rather a long-term benefit that extended beyond the worker's employment period. Consequently, the worker's claim that the concessional airfares should be included in his NWE was dismissed. The court also declined to assess the monetary value of the concessional airfares, as it could not determine an appropriate figure based on the evidence presented.

Orders