Farrell v Metromix Pty Limited [2001] NSWCA 166

Farrell v Metromix Pty Limited [2001] NSWCA 166

The loss of overtime caused by the employer's attitudinal change was a proper factor to take into account under the wide discretion in s 40(1) while the appellant remained employed by the respondent, because it assisted in distinguishing loss of earning capacity due to the work injury from loss due to other circumstances, and the Commissioner gave sufficient reasons for awarding $75 per week for the period 15 July 1997 to 11 June 1999. However, after the appellant's redundancy on 11 June 1999, the Commissioner erred in law by failing to calculate what the appellant was able to earn in suitable employment under s 40(2)(b), and by applying the overtime-related non-injury factor when that...

Jurisdiction
Australia
Judgment Date
08 June 2001
Procedural Posture
Workers Compensation Appeal / Appeal to the New South Wales Court of Appeal From Dismissal of an Appeal by a Judge of the Compensation Court; Appeal Lies Only in Respect of Error of Law
Outcome
Appeal allowed with costs; award of weekly compensation set aside; substituted award made for the period 15 July 1997 to 11 June 1999; post-11 June 1999 weekly compensation remitted to the Compensation Court.
Legal Topics
['partial Incapacity' 'weekly Compensation' 'loss of Earning Capacity' 'section 40 Discretion' 'overtime' 'non Injury Factors' 'reasons for Decision' 'remitter']
['workers Compensation'] ['partial Incapacity' 'weekly Compensation' 'loss of Earning Capacity' 'section 40 Discretion' 'overtime' 'non Injury Factors' 'reasons for Decision' 'remitter']

Case Brief

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Procedural Posture

Workers Compensation Appeal / Appeal to the New South Wales Court of Appeal From Dismissal of an Appeal by a Judge of the Compensation Court; Appeal Lies Only in Respect of Error of Law

Legal Issues

  1. 1 ["Whether, in exercising the discretion under s 40(1) of the Worker's Compensation Act 1987, the Commissioner was entitled to take into account reduction of overtime caused by the employer's attitudinal change rather than the worker's injury." 'Whether the Commissioner gave sufficient reasons for the exercise of the s 40(1) discretion.' 'Whether the Commissioner erred in failing to calculate, for the period after redundancy on 11 June 1999, what the appellant was able to earn in suitable employment under s 40(2)(b).' "Whether the non-injury factor concerning reduction of overtime by the respondent employer remained relevant after the appellant left the respondent's employment."]

Ratio Decidendi

The loss of overtime caused by the employer's attitudinal change was a proper factor to take into account under the wide discretion in s 40(1) while the appellant remained employed by the respondent, because it assisted in distinguishing loss of earning capacity due to the work injury from loss due to other circumstances, and the Commissioner gave sufficient reasons for awarding $75 per week for the period 15 July 1997 to 11 June 1999. However, after the appellant's redundancy on 11 June 1999, the Commissioner erred in law by failing to calculate what the appellant was able to earn in suitable employment under s 40(2)(b), and by applying the overtime-related non-injury factor when that...

Court Disposition

Appeal allowed with costs; award of weekly compensation set aside; substituted award made for the period 15 July 1997 to 11 June 1999; post-11 June 1999 weekly compensation remitted to the Compensation Court.

Orders

  • ['Appeal allowed with costs.' "Award of weekly compensation under s 40 of the Worker's Compensation Act 1987 set aside." 'There be substituted therefor an award in favour of the appellant pursuant to s 40 of the Act of $75.00 per week from 15 July 1997 to 11 June 1999.' 'The issue of the amount of weekly...