20 In this case, the respondent's claim fell to be determined in two different periods - namely the periods before and after his hand injury. The assessment of the s 40(2)(b) amount in the first period itself fell into three distinct time periods: (i) the period of unemployment immediately after ceasing work with the appellant; (ii) the period during which he was employed by De Bruin; and (iii) the period during which he was employed by Allied Constructions up until the date of his hand injury. In accordance with the principles to which I have referred above, the determination of the s 40(2)(b) amount during the whole of the first period was upon the basis of what he was earning or could have earned in some suitable employment. His Honour correctly approached the matter in that way.
21 That leaves the question whether the trial judge erred in the final phase of the determination, namely in respect of the period after the hand injury. Put more directly, the question is, whether, on the facts found, the trial judge in that period should have used, as the s 40(2)(b) amount, the respondent's post hand injury earnings (as his Honour did), or whether he should have applied the alternative provision under s 40(2)(b), "the average weekly amount that the worker … would be able to earn in some suitable employment, from time to time after the injury". During this period the respondent's incapacity arose in part from injuries suffered whilst in the employ of the appellant and in part due to his supervening hand injury sustained in different employment. In that circumstance, his entitlement to compensation in the subject claim is to be determined having regard only to his incapacity arising from the injuries suffered in his employment with the appellants. Accordingly, the proper approach to s 40(2)(b) requires the court to take as the relevant amount under that paragraph the amount he would be able to earn in some suitable employment, but for the injury sustained during the course of employment with the appellant. The trial judge did not approach the assessment for the period after the hand injury on this basis. Rather, he took the amount the respondent was earning in a diminished capacity because of both his back injury and his hand injury. His Honour erred in law in doing so.
22 The question then arises as to what should flow as a result of this error and in particular whether the matter should be remitted to the Compensation Court for re-hearing on this aspect of the award. Senior counsel for the respondent advised the Court that rather than having the matter remitted, the respondent accepted that the appropriate amount for the purpose of s 40(2)(b) was $246.60 (being the same difference as between the agreed s 40(2)(a) amount and the $800 the respondent earned with De Bruin). Although senior counsel for the appellant did not appear to resist this approach, he did not agree with it either. His primary position was that the respondent was not entitled to any compensation because he had demonstrated that the amount he was able to earn in some suitable employment was the $1,600 earned with Allied Constructions.
23 Notwithstanding the reasonable position taken by counsel for the respondent, I am of the opinion that, absent consent or facts that are not in dispute, such an approach is precluded by s 107 of the Workers' Compensation Act (now s 105 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)) which provides:
"[s]ubject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all matters arising under this Act (except Part 5)."
24 The proper approach to s 40(2)(b) required the trial judge to determine on the facts of this case what amount the respondent would have earned in some suitable employment. That determination is a question of fact. The jurisdiction of this Court is limited by s 32 of the Compensation Court Act to the determination of whether the trial judge erred in law or wrongly admitted or rejected evidence. Section 32(2) provides that this Court may on the appeal "remit the matter to the Compensation Court for determination … in accordance with the decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit".
25 That latter provision does not, however, invest the Court of Appeal with jurisdiction to make findings of fact. There remains outstanding, in this case, a crucial factual issue - namely the amount the respondent could earn in some suitable employment. On the case presented to the trial judge two possibilities were raised - either $800 per week (as earned in the De Bruin employment) or $1,600 per week (as earned with Allied Constructions). It is for the parties to determine what evidence will be adduced on a re-hearing to enable the judge on that re-hearing to make the factual finding, based on the proper approach to s 40(2)(b), which this case requires: see Kraturn Pty Limited (t/as Mac's Fruit Centre) v Quinn (unreported, New South Wales Court of Appeal, 28 September 1990); Ludowici at 595.