CITATION: Wrigley v Holland [2002] NSWCA 109 FILE NUMBER(S): CA 40585/01 HEARING DATE(S): 22 March 2002 JUDGMENT DATE:
2 May 2002PARTIES :
THE WRIGLEY CO PTY LTD
v
KYLIE HOLLANDJUDGMENT OF: Handley JA at 1; Hodgson JA at 29; Ipp AJA at 30
LOWER COURT JURISDICTION : Compensation Court LOWER COURT
FILE NUMBER(S) :CC 52701/00 LOWER COURT
JUDICIAL OFFICER :Walker CCJ
COUNSEL: Appellant - J D Hislop QC/N E Chen
Respondent - R GoodridgeSOLICITORS: Appellant - Price Waterhouse Coopers Legal
Respondent - Firths The Compensation LawyersCATCHWORDS: WORKERS COMPENSATION ACT - section 40 - weekly compensation - effect of worker's pregnancy - discretion - PROCEDURAL FAIRNESS LEGISLATION CITED: Workers Compensation Act 1987 (NSW) CASES CITED: Australian Wire Industries Pty Limited v Nicholson (1985) 1 NSWCCR 50
Stead v State Government Insurance Commission (1986) 161 CLR 141
Morgan v Commissioner for Railways (1972) 46 WCR 33
Myer Sydney Ltd v Buckley [1980] 54 WCR 319
Hirst v Illawarra Area Health Service (2000) 21 NSWCCR 82
Kesen v Luke Singer Pty Limited (1989) 18 NSWLR 566
NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273DECISION: Appeal allowed - orders made
40585/01
CC 52701/00
HANDLEY JA
HODGSON JA
IPP AJA
2 May 2002
workers compensation act – section 40 – weekly compensation – effect of worker’s pregnancy – discretion
procedural fairness
Under s 40 of the Workers Compensation Act 1987 (NSW) the Compensation Court is required to determine two distinct amounts. The first under s 40 (2)(a) is the weekly amount which a worker would probably have been earning but for the injury if the worker had continued to be employed in the same or some comparable employment. The second under s 40(2)(b) is the average weekly amount that the worker is earning or would be able to earn in some suitable employment after the injury. The Court must then, in its discretion, award weekly compensation which does not exceed the difference.
In the first period covered by the award of the trial Judge, the worker was working or looking for work. In the second period she was not working or looking for work. The employer’s counsel submitted that in the exercise of the Judge’s discretion under s 40 (1) an amount of under $50 per week should be awarded. The worker’s counsel submitted that an amount of $100 per week should be awarded. The Judge found that for the entire period there was a reduction in earnings of $547.41, and in his discretion he awarded $391.41 per week for both periods.
The appellant submitted that the trial Judge had failed to take into consideration in the exercise of his discretion that the worker would not have continued in the same or some comparable employment because of her pregnancy and baby.
HELD: (1) The trial Judge was bound, as a matter of law, to take into account in exercising…
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- Case
- [2002] NSWCA 109
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether Ms. Holland's pregnancy, and the fact that she was receiving maternity leave payments, disentitled her to weekly compensation under section 40 of the Act. This involved determining the proper interpretation of section 40, particularly the interplay between a worker's entitlement to weekly compensation and the receipt of other payments, and whether the Commission had properly exercised its discretion in awarding compensation. Procedural fairness was also a consideration.
The Court of Appeal held that section 40 of the Act did not operate to disentitle Ms. Holland to weekly compensation merely because she was pregnant or receiving maternity leave payments. The Court reasoned that the purpose of section 40 was to provide compensation for incapacity for work, and pregnancy itself did not negate that incapacity. The Court found that the Commission had not erred in its approach to the discretion conferred by the section, and that the employer had not been denied procedural fairness.
The appeal was allowed, and the orders of the Workers Compensation Commission were set aside and replaced with new orders.
Orders
Orders of the court
Appeal allowed - orders made
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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