North Broken Hill Limited v Tumes [1999] NSWCA 309

North Broken Hill Limited v Tumes [1999] NSWCA 309

For the period after the respondent's hand injury, his incapacity arose partly from injuries suffered with the appellants and partly from the later injury in different employment. His entitlement in this claim had to be determined only by reference to incapacity from the injuries suffered with the appellants. The trial judge erred in law by using the respondent's actual post-hand-injury earnings, which reflected both injuries, instead of determining what he would have been able to earn in suitable employment disregarding the subsequent hand injury. Because that amount was a factual question within the Compensation Court's jurisdiction, the matter had to be remitted.

Jurisdiction
Australia
Judgment Date
27 August 1999
Procedural Posture
Workers Compensation Appeal / Appeal From an Ex Tempore Decision of Curtis CCJ in the Compensation Court, Limited to a Question of Law Under Compensation Court Act 1984 (nsw), S 32
Outcome
Appeal allowed
Legal Topics
['partial Incapacity for Work' 'weekly Compensation Payments' 'economic Loss' 'suitable Employment' 'supervening Injury' 'appeal on Question of Law']
['workers Compensation' 'employment Injury Compensation'] ['partial Incapacity for Work' 'weekly Compensation Payments' 'economic Loss' 'suitable Employment' 'supervening Injury' 'appeal on Question of Law']

Case Brief

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Procedural Posture

Workers Compensation Appeal / Appeal From an Ex Tempore Decision of Curtis CCJ in the Compensation Court, Limited to a Question of Law Under Compensation Court Act 1984 (nsw), S 32

Legal Issues

  1. 1 ['Whether the trial judge misapplied s 40 of the Workers Compensation Act 1987 (NSW) by failing to determine whether the respondent suffered economic loss as a result of injuries sustained in employment with the appellants.' "Whether, after the respondent's subsequent hand injury in different employment, the s 40(2)(b) amount should be based on actual post-hand-injury earnings or on what he would have been able to earn in suitable employment disregarding the supervening injury." 'Whether the Court of Appeal could itself determine the factual amount the respondent could earn in suitable employment or was required to remit the matter to the Compensation Court.']

Ratio Decidendi

For the period after the respondent's hand injury, his incapacity arose partly from injuries suffered with the appellants and partly from the later injury in different employment. His entitlement in this claim had to be determined only by reference to incapacity from the injuries suffered with the appellants. The trial judge erred in law by using the respondent's actual post-hand-injury earnings, which reflected both injuries, instead of determining what he would have been able to earn in suitable employment disregarding the subsequent hand injury. Because that amount was a factual question within the Compensation Court's jurisdiction, the matter had to be remitted.

Court Disposition

Appeal allowed

Orders

  • ['Set aside the third and fourth components of the first order of Curtis CCJ of the Compensation Court of New South Wales dated 18 May 1998.' "Remit the matter to the Compensation Court for re-hearing in respect of the period after 20 February 1995, in accordance with this Court's decision." "Order that the...