BURNS v LOVETT BUILDING CO PTY LTD [1995] NSWCA 65

BURNS v LOVETT BUILDING CO PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and SHELLER JJA

9 August 1995, 20 September 1995

[1995] NSWCA 65

WORKERS COMPENSATION — ASSESSMENT

WORKERS COMPENSATION — assessment — amount — weekly payments during incapacity — partial incapacity — an application by the employer for a review of weekly compensation payments — trial judge varied the payments — she found that the weekly amount that the worker would probably have been earning but for injury "was not less than $600 per week", and that the average weekly amount the worker was capable of earning or was able to earn in suitable employment, was $480 per week for one period, and then $500 per week from then on and continuing — on appeal, the worker challenged the both of these assessments — held — appeal dismissed — although a determination that the relevant weekly earnings would be "not less than" a particular sum does not comply with s40 of the Workers Compensation Act 1987, this was merely a textual slip, and when read in context, it was clear that the trial judge had made a determination that the relevant weekly earnings were $600 per week — if this was not the case, and the Court was required, as on a rehearing, to make an appropriate determination, then it would determine relevant weekly

earnings at $600 per week — in regard to the assessment of the worker's post-injury earnings, the trial judge was entitled to adopt different rates for the two periods — moreover, there was no relevant error demonstrated in the trial judge's assessments of these amounts.

Workers Compensation Act 1987, s40. ORDERS

Appeal dismissed with costs.

Mahoney AP On 10 October 1989 Richard David Burns ("the worker") was injured. He was partially incapacitated for his work as a labourer with carpentry skills. It is accepted that he has remained partially incapacitated until the present time. He applied for, inter alia, weekly compensation payments: Workers Compensation Act 1987, s40. His entitlements in that regard have produced a series of court hearings. On 2 May 1991 her Honour Judge O'Toole made an award in his favour. An appeal was brought to this Court and the award was set aside; it was remitted to the Compensation Court for an adjustment of the weekly compensation payments: Lovett Building Co Pty Ltd v Burns (1992) 29 NSWLR 475. On 21 September 1993, before that reconsideration had been completed, the employer company made an application for a review of the weekly compensation. On 27 September 1993, her Honour made a comparatively small adjustment to the order previously made for weekly payments. On 2 December 1993 her Honour gave judgment in respect of the application for review of the compensation entitlements. An appeal has been brought to this Court against that judgment.

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I do not direct criticism against those involved in this series of litigation; the Court has not delayed the present proceeding to seek a full explanation of what has occurred and there may or may not be reasons why a claim of these dimensions has warranted the expenditure of public resources and, no doubt, the expenditure of private money to bring the disputes to their present stage. But a recital of what has taken place leads reasonably to the inquiry whether what is in dispute between the parties has warranted what has to date occurred. And it is relevant to note that the matters the subject of consideration in the present appeal relate to the wages which the worker could and would have earned as far back as 1993. What is here decided cannot pre-empt the possibility of a further application or applications for variation.

The submissions made by Mr Deakin QC for the worker and by Mr Sharpe for the company have derived from the complication of the terms of the present legislation, the complexity of the procedures and the terms of the judgment. The complications of the Workers Compensation Act 1987 (as amended) and the difficulties which confront the attempts to apply it to particular cases have been remarked upon elsewhere. The number of decisions of the Compensation Court which have been brought on appeal to this Court has been large and this is, no doubt, to an extent due to the factors to which I have referred.

The subject matter of compensation is necessarily one of considerable complication. Compensation rights are or may be of great value to those who, in the context of their employment, have been injured. I do not suggest that those who have been injured in this way should not have for the determination of their rights the best procedures which the community is able to afford. I do not suggest that valuable entitlements of this kind should be determined be the dictate of an official or by the assessment of persons who are not accountable to those whose benefits are in question. And I am conscious of the large number of compensation cases which are disposed of without complications of the present kind. But this is not an isolated case. The reasonable person (who is the anthropomorphic conception of justice: Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728) may well inquire whether there is not a better way to deal with cases of this kind.

By the award of 27 September 1993, the worker was awarded (as far as is here relevant) weekly compensation of $184 from 5 November 1990. By the award of 2 December 1993, the weekly payments were varied to provide as follows:

(1) $120 per week from 11 September 1992 to 31 March 1993;

(2) $100 per week from 1 April 1993, such weekly payments to continue in accordance with the provisions of the Act.

It is against this lastmentioned award that the present appeal has been brought.

The way in which the judge arrived at the two weekly amounts awarded appears from her judgment. She said:

"On the evidence, I have to be arbitrary to a degree to determine the issues raised by the parties.

For those reasons I find that:

(1) since 11 September 1992, the weekly amount which the worker would probably have been earning but for injury, was not less than $600 per week;

(2) between 11 September 1992 and 31 March 1993, the average weekly amount the worker was capable of earning or able to earn in suitable employment, was $480 per week, and between | April 1993, date and continuing, $500 per week."

URJ BURNS v LOVETT BUILDING CO PTY LTD (Mahoney AP) 3

I vary the award I made on 27 September 1993 by substituting an award pursuant to s40 in the sum of $120 per week between 11 September 1992 and 31 March 1993, and in the sum of $100 between 1 April 1993, date and continuing, as appears reasonable in the circumstances of this case."

The findings made by the learned judge were made as contemplated by the provisions of s40 as they stood at the relevant time. As was explained by this Court in Lovett Building Co Pty Ltd v Burns and has been emphasised in other cases, the determination of weekly compensation in the case of partial incapacity involves (I adopt a paraphrase in general terms) three things: the determination of what uninjured the worker probably would have been earning; the determination of what, injured, he is earning or capable of earning in suitable employment; and the determination as a matter of discretion of what proportion of the difference between these two should be awarded to the worker.

The determination of the first two of these matters was pursued at length in argument. Mr Deakin's submissions in respect of the first may be dealt with under two headings: he submitted, first, that the determination of earnings as "not less than $600 per week" was bad in form; and that the determination, in adopting $600 per week, was not supported by the evidence.

S40 required that the judge determine, for this purpose, a particular sum: Mr Deakin QC is correct in his submission that a determination that the relevant weekly earnings would be "not less than" a particular sum does not comply with s40. It was my impression, upon a reading of the judge's judgment, that her use of the phrase "not less than $600 per week" involved a textual slip and that she had intended to find that the relevant weekly earnings would probably have been $600 per week. Her orders take $600 per week as the basis of calculation. I was inclined to the view that, as Mr Sharpe's arguments have suggested, the phrase "not less than" was taken from her Honour's judgment given at an earlier stage of the litigation. In explanation of this, it was submitted that the then form of the section imposed a "cap" upon the amount which could be taken as the probable weekly earnings for this purpose and that, to the extent that those earnings were then found to be in excess of $600 per week, they were not to be taken into account. Accordingly, her Honour had, in an earlier judgment, used the phrase "not less than $600 per week" or its equivalent. Mr Sharpe's submissions suggested that the phrase in the present judgment was taken by an error from that judgment.

That initial view of her Honour's use of the phrase has, in my opinion, been supported by the material which Mr Sharpe, during the course of the hearing of the appeal, has placed before this Court. The Court has been referred without objection to the transcript of the argument before her Honour in the Compensation Court. The argument does not, of course, flow in the style of formulated propositions. But I infer that it was the purpose of counsel in argument to suggest to her Honour a particular sum as representing the probable earnings of the worker uninjured and that her Honour, making calculations of the kind that appear from that transcript, intended to arrive at a particular sum.

What a judge has decided and the reasons for her decision must be taken from the text of what she has written. An appeal court may not substitute for what has been written other orders or other reasons, no matter how beneficial it may be to do so. That is why it is, in my respectful opinion, important that judgments, particularly judgments of first instance judges, be read according to their true meaning and that an appeal court does not require of them the precision of a draft settled by conveyancing counsel. It has been said that documents, even statutes,

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are to be construed according to the true intent of the maker of them and that that intent is to be gathered from the document as a whole considered according to the mischief, the remedy, and the manner of its application: see generally Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315 and the cases there referred to.

A judgment is to be given a no less beneficial or purposive construction. In my opinion, the present judgment, so construed, involves a determination of the relevant weekly earnings at $600 per week. If I be wrong in so construing the judgment, it is necessary for this Court, as on a rehearing: Supreme Court Act 1970, s75A; to make the appropriate determination. I would determine the relevant weekly earnings at $600 per week.

There was, in my opinion, ample basis in the evidence for that determination. Two witnesses for the company gave differing evidence as to what could be earned. Mr Lovett said that he employed labourers of the relevant kind at a rate of about $100 per day over a three or four day week. A builder, Mr Clancy, said that he needed to pay $18.50 per hour for such employees. Her Honour had to determine, inter alia, what hours of work the worker, uninjured, would have been able to obtain and would have worked. The transcript of argument indicates, as l infer, that she concluded that a person in that industry would not work a five day week of forty hours; the working week would be of a different kind. Her Honour dealt with calculations of various kinds, as to hours worked and rates of pay. A thirty hour week at $18.50 per hour would have produced for the worker some $555 per week; $600 per week at $18.50 per hour would have involved some thirty-two hours work. The determination of the amount probably earned involved the assessment of a number of uncertainties and therefore necessitated a discretionary judgment or at least an assessment. I see no error in the assessment which the judge made in this regard. I would adopt it as my own.

Mr Deakin's submissions in relation to the second matter, the determination of what injured the worker was earning or capable of earning also involved two main contentions. First, it was submitted that there was nothing to support her Honour's adoption of one rate for the period 11 September 1992 to 31 March 1993 and another rate for the period on and from 1 April 1993. I am not prepared to find error in what the judge did in this regard. The matter was dealt with at the trial by reference to particular periods and the Court was invited so to deal with it. The applicant employer's wage schedule, which is included in the appeal papers, shows detailed actual and comparable earnings for a large number of periods. One of those periods commenced on 11 September 1992 and another ended on 31 March 1993. It was suggested that there had been a (slight) change on | April 1993. The Compensation Court is a specialist court which, within appropriate limits, may take judicial notice of wages and the variation in wages: this has conventionally been accepted. I see no demonstrated error in the judge assessing this part of the matter by reference to the two periods in question. I would adopt the same approach.

It was then submitted that the evidence did not support the conclusions that, injured, the worker would have earned the amounts, $480 per week and $500 per week, at which the judge arrived. The assessment of his actual or potential earnings involved the making of judgments or valuations. There was evidence before the judge that the worker was at the relevant time employed as manager of a motel/hostel. His benefits from the position included a payment in cash and the right to occupy a unit at the hostel, with certain attendant benefits and duties. Her Honour rightly sought to quantify in money terms the benefits of the

URJ BURNS v LOVETT BUILDING CO PTY LTD (Sheller JA) 5

worker's employment. The money sums received were evidenced in various ways, not all of them consistent: the worker gave oral evidence, a taxation statement was provided, and there was other evidence of what he had received in money. An assessment had to be made of the money he received. There was in addition evidence from estate agents or similar witnesses as to the value to be attributed to the accommodation provided to him. The estimates of these witnesses varied substantially. Her Honour had to arrive at a determination of the overall value of what the worker received. Again, the assessment required a discretionary

determination involving matters of some uncertainty. I see no relevant error in what the judge did. I would adopt it as my own.

There was, in my opinion, no reason why, in the exercise of the discretion granted by s40, the difference between these two determinations should be varied. There was no error in what in this regard the judge did.

As I have indicated, I am conscious that the appeal to this Court is an appeal by way of rehearing: see Supreme Court Act 1970, s75A; Warren v Coombes (1979) 142 CLR 531. Considering the matter as on a rehearing, I see no reason why the decision of the judge should be interfered with.

In my opinion the appeal should be dismissed with costs.

Clarke JA I agree with Mahoney AP. Sheller JA I agree with Mahoney AP.

Appeal dismissed with costs.

COUNSEL:

Appellant: PJ DEAKIN QC and MJ CRANITCH Respondent: JL SHARPE

SOLICITORS:

Appellant: NEVILLE and EDWARDS Respondent: VANDERVORDS