Wrigley Co Pty Ltd v Holland

CITATION:	Wrigley v Holland [2002] NSWCA 109
FILE NUMBER(S):	CA 40585/01
HEARING DATE(S):	22 March 2002
JUDGMENT DATE:	2 May 2002
PARTIES :	THE WRIGLEY CO PTY LTD v KYLIE HOLLAND
JUDGMENT 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 Goodridge
SOLICITORS:	Appellant - Price Waterhouse Coopers Legal Respondent - Firths The Compensation Lawyers
CATCHWORDS:	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) 273
DECISION:	Appeal allowed - orders made

40585/01
CC 52701/00
HANDLEY JA
HODGSON JA
IPP AJA


2 May 2002

THE WRIGLEY CO PTY LTD v KYLIE HOLLAND

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…