FOX SOUND AND ELECTRONICS PTY LTD v MELLIOS [1995] NSWCA 153

FOX SOUND AND ELECTRONICS PTY LTD v MELLIOS [1995] NSWCA 153

Payments in excess of $380 per week received by the respondent following injury were properly characterised as loans, not earnings, for the purposes of s40, thus entitling him to compensation based on the difference between his probable earnings but for injury and his actual earnings; the statutory formula under s66 for permanent impairment was correctly applied, reflecting the respondent's severe back injury and justifying the award at 45% of the prescribed amount.

Parties
Appellant: Fox Sound and Electronics Pty Ltd; Respondent: Con Mellios
Jurisdiction
Australia
Judgment Date
26 June 1995
Procedural Posture
Workers Compensation Appeal / Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Weekly Payments, Loss of Earnings, Partial Incapacity, Permanent Impairment, Application of Statutory Formula
Workers Compensation Weekly Payments Loss of Earnings Partial Incapacity Permanent Impairment Application of Statutory Formula

Case Brief

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Parties

Fox Sound and Electronics Pty Ltd

Appellant

Con Mellios

Respondent

Procedural Posture

Workers Compensation Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether payments made to the respondent by the appellant after injury constituted earnings or loans for the purpose of calculating weekly compensation under s40 of the Workers Compensation Act 1987
  2. 2 Proper application of the statutory formula under s66 for assessment of permanent impairment

Ratio Decidendi

Payments in excess of $380 per week received by the respondent following injury were properly characterised as loans, not earnings, for the purposes of s40, thus entitling him to compensation based on the difference between his probable earnings but for injury and his actual earnings; the statutory formula under s66 for permanent impairment was correctly applied, reflecting the respondent's severe back injury and justifying the award at 45% of the prescribed amount.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant must pay the respondent’s costs.