Whitehaven Coal Mining Ltd v Pain

Case [2018] NSWCA 229


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Whitehaven Coal Mining Limited v Pain [2018] NSWCA 229
Hearing dates: 11 July 2018
Decision date: 18 October 2018
Before: White JA at [1];
Emmett AJA at [56];
Simpson AJA at [66]
Decision:

Appeal dismissed with costs.

Catchwords: WORKERS COMPENSATION – Weekly and lump sum compensation – Where employee worked in coal mine – Appeal in point of law – Whether primary judge erred in awarding weekly compensation for partial incapacity the full amount of the difference between the probable weekly amount but for the injury and the average weekly amount he was able to earn – Where exercise of discretion as to proper difference was not in dispute at trial – Appeal dismissed
Legislation Cited: District Court Act 1973 (NSW), ss 142G, 142N
Supreme Court Act 1970 (NSW), s 75A
Workers Compensation Act 1987 (NSW), ss 4, 9, 66, 67, Sch 6
Workers’ Compensation Act 1926 (NSW), ss 6, 9, 11
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323, 352, 353
Cases Cited: Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bruce v Cole (1998) 45 NSWLR 163; [1998] NSWCA 45
Commissioner for Railways v Bain (1965) 112 CLR 246; [1965] HCA 5
Currie v The Commissioner of Inland Revenue [1921] 2 KB 332
Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482; [1959] HCA 55
Dennis v Watt (1942) 43 SR (NSW) 32
Farrell v Metromix Pty Ltd [2001] NSWCA 166
Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; [2014] 96 ATR 875
Goodwin v Commissioner of Police [2012] NSWCA 379
Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148
Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158
Hume v Walton [2005] NSWCA 148
Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566
Lawrence v Carroll [1998] NSWCA 129
Mitchell v Central West Health Service (1997) 14 NSWCCR 526
Ormwave Pty Ltd v Smith [2007] NSWCA 210; [2007] 5 DDCR 180
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257
Tritton v Clarke [2018] NSWCCA 31
Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260
Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Category:Principal judgment
Parties: Whitehaven Coal Mining Limited (Appellant)
Craig Allan Pain (Respondent)
Representation:

Counsel:
M Joseph SC (Appellant)
I D Roberts SC with D R Benson (Respondent)

  Solicitors:
Hicksons Lawyers (Appellant)
Slater & Gordon Lawyers (Respondent)
File Number(s): 2017/353606
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
n/a
Date of Decision:
26 October 2017
Before:
Ashford ADCJ
File Number(s):

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AGLC
Whitehaven Coal Mining Limited v Pain [2018] NSWCA 229
Case
[2018] NSWCA 229
Decision Date

CaseChat Overview and Summary

Whitehaven Coal Mining Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had awarded weekly compensation for partial incapacity to Mr Pain, an employee who had worked in a coal mine. The dispute concerned the calculation of the amount of weekly compensation payable.

The central legal issue before the Court of Appeal was whether the primary judge had erred in law by awarding weekly compensation for partial incapacity in the full amount of the difference between the probable weekly earnings of Mr Pain but for his injury and his actual average weekly earnings post-injury. The appeal was specifically limited to a point of law, with the exercise of discretion regarding the proper difference not being in dispute at the trial.

The Court of Appeal dismissed the appeal. The judges found no error of law in the primary judge's determination. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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