Cunningham v Workcover/Mercantile Mutual Insurance

3 Subsequent to the filing of that notice of dispute the Corporation's agent appreciated that the worker had previously received a lump sum payment consequent upon an agreement that she made with the Corporation ("the redemption agreement") wherein she agreed to redeem her entitlements to income maintenance on account of a disability that she had previously sustained in the course of her employment with Webster Manufacturing Pty Ltd ("Webster"). The redemption agreement purported to comply with the requirements prescribed by s 42 of the Workers Rehabilitation and Compensation Act, 1986 ("the Act").

4 In the redemption agreement the worker and the Corporation agreed that the worker was taken to be receiving the amount of $286.48 for the purposes of s 35(6a) of the Act.

5 Having belatedly discovered all of this, the Corporation, purportedly in reliance upon s 53(7), redetermined the worker's weekly payments of income maintenance to take into account that figure and it determined that she was entitled to the amount of $23.52 per week. The redetermination is the subject of a separate notice of dispute. Both matters are before me.

6 At this stage I have not received evidence from the parties as to what is the appropriate assessment of the worker's notional weekly earnings in connection with the disability that she sustained in the course of her employment with Wingfield. For the moment, all that I have been asked to do is to deal with two preliminary points that arise from the dispute. The first, is whether it is open for the Corporation to raise the issue concerning the redemption agreement. The second, is that if it can, whether on the facts in this case the redemption agreement impacts upon the later claim.

Is the Corporation bound by the terms of its original determination?

7 In respect of the first issue Mr Bourne, counsel for the worker, contends that as this matter should have been and was not raised in the original determination accepting the claim, it is not open, other than though s 53(7), for the Corporation to now put this in issue. Next, he says that because the Corporation in fact knew that the worker had received a lump sum payment pursuant to s 42 on account of her disability arising out of her employment with Webster, it was unable to meet the statutory criteria necessary to enliven the power to make a redetermination under s 53(7) such that the purported redetermination should be treated as null and void.

8 Mr Calligeros, counsel for the Corporation, argued that it was unnecessary for the Corporation to invoke s 53(7) to put this matter in issue. He submitted that as result of the worker's lodgment of the notice of dispute the quantum of the worker's weekly payments of income maintenance was at large and that it is permissible for the Corporation to now assert a position different to that which it relied upon in its original determination, namely the impact of the redemption agreement. In the alternative he says that the Corporation's invocation of s 53(7) to cure the error was appropriate.

9 In my opinion, the Corporation's primary submission has merit. In Wear v WorkCover/Allianz Australia Workers Compensation (SA) Ltd (Greyhound Australia Ltd) [2000] SAWCT 77 at par 90 the majority, in holding that a determination made pursuant to s 53 is important and that parties are entitled to assume that the Corporation is bound by its terms, recognised that there may be occasions when it is permissible for the Corporation to adopt a different position to that taken in its initial determination. One of those that they identified was a case of "obvious mistake". Here, the worker had executed the redemption agreement with the Corporation under her then married name of "Ferral". Although it should have been picked up at the time, the Corporation's agent made an obvious mistake in that the relevant officer overlooked the fact that the worker had revealed that her name had changed. Had the officer not made that error the Corporation's computer check would have revealed the fact of the redemption agreement. I would regard these circumstances as falling within the exception identified by the majority in Wear (supra). It follows that a consideration of s 53(7) does not arise. It also follows that I must deal with the second issue. I will now do so.

Can the Corporation rely upon the redemption agreement?

10 The worker's counsel contends that the redemption agreement must be ignored in considering her claim based upon the disability she sustained with Wingfield because the agreement is void. He says that it is void because she was not given competent, professional and financial advice as required by the Act.

11 The relevant terms of s 42 are as follows:-

"(1) Any of the following liabilities may, by agreement between a worker and the Corporation, be redeemed by a capital payment to the worker-

(b) a liability to pay compensation under section 32;

(c) a liability to make a capital payment for loss of future earning capacity.

(2) An agreement for the redemption of a liability under this section cannot be made unless-

(a) the worker has received competent professional advice about the consequences of redemption; and

(b) the worker has received competent financial advice about the investment or use of money to be received on redemption; and

(d) a recognised medical expert has certified that the extent of the worker's incapacity resulting from the compensible disability can be determined with a reasonable degree of confidence.

(3) The amount of the redemption payment is to be fixed by agreement.

(9) However , if agreement is not reached, a party cannot be compelled to agree to redemption of the liability.

12 In order to deal with this submission it is necessary for me to set out some relevant background facts and the evidence of the relevant parties.

13 Following the lodgement of her claim for compensation in respect of the disability she sustained whilst working for Webster the worker came to be in receipt of weekly payments of income maintenance. On about 6 February 1996 she received a determination issued by the Corporation advising her that her weekly payments were to be reduced to take into account what she was then earning from employment. On about 22 March 1996 she received a further determination issued by the Corporation advising her that her weekly payments were to be discontinued on account of an alleged breach of mutuality relating to her alleged resignation from employment on 13 March 1996. As a result of these the worker instructed the Corporation's advocacy unit to act on her behalf and it filed an application seeking a review of the decision to discontinue her weekly payments.

14 The worker subsequently resolved to instruct solicitors. On 26 September 1996 she spoke with Ms Julia Palios of the firm Palios Meegan and Nicholson ("PM&N") and thereafter PM&N acted on her behalf in connection with these matters.

15 I cannot be certain when they commenced, but certainly by mid February 1997 PM&N were having discussions with both the worker and with the Corporation's solicitors about a lump sum payment to resolve all outstanding issues between the worker and the Corporation.

16 On 18 February 1997 Ms Palios had a discussion with the Corporation's solicitors during which the Corporation's solicitors offered to redeem the worker's entitlements to weekly payments and medical expenses for $35000. I assume that the offer also included an additional offer to settle the worker's outstanding s 43 entitlements. The following day, PM&N sent a letter of advice to the worker. The letter confirmed the offer. It recommended that the offer be rejected. It advised that a counter offer to settle the claim should be put in the amount of $49500 to redeem weekly payments, $500 future medical expenses and various amounts on account of the worker's s 43 entitlements. The letter also gave certain advice about the effect of a redemption agreement which was in the terms following:-

"(a)You will have no further entitlement to income maintenance payments;

(b) The amount would be non-taxable. However, the Taxation Department may change its ruling in relation to taxation of redemption payments in the future;

(c) We advise that accepting a redemption payment would mean that you would be precluded from receiving Social Security benefits for a period of time. That period is calculated by determining how long it would take a worker earning average weekly earnings to earn half of the redemption sum;

(d) The Department of Social Security may also take into account any recent lump sums paid in relation to permanent disability for the purposes of this calculation, which may result in a higher preclusion period;

(a) If you obtain alternative employment and then suffer from a work-related incapacity in the future, WorkCover, or its insurers, may reduce your portion of entitlements to income maintenance payments and refuse to pay a portion of your medical expenses in order to make some allowances for the redemption payment;

(b) You will have no further entitlement to payment of medical expenses by WorkCover or its insurers;

(c) Receipt of a redemption payment for medical expenses may restrict your entitlement to claim future medical expenses through Medicare or private health funds.

From the sum representing redemption of medical expenses, you must personally meet any future expenses in relation to your compensable injury which may arise. Once that sum has been spent on medical expenses, you may be able to claim medical expenses through Medicare or a private health fund.

Please note that some medical expenses which would currently be reimbursed by WorkCover or its insurer, may not be paid by a private health fund or Medicare;

(h) We advise that the Health and Other Services (Compensation) Act, 1995, also applies, and must be complied with. This may result in a portion of the settlement fund being paid to the Health Insurance Commission. We advise that the Health Insurance Commission can take up to three months to make its decision."

17 Ms Palios told me that when she first became involved in negotiations concerning redemption agreements with the Corporation she negotiated on the basis that the weekly amount being redeemed was as determined by using the "Luntz tables" and she based the calculations on a discount rate of 3 per cent. The reference to the Luntz tables was clearly a reference to the appendix to the book Assessment of damages for personal injury and death written by Professor Luntz which contains actuarial tables that are routinely relied upon in determining future losses in common law actions in respect of personal injuries and death cases.

18 Ms Palios told me that within a year or so after redemption agreements became an option through which the lump sum resolution of workers compensation disputes could be negotiated, the Corporation began to insist that such agreements be negotiated on the basis that they discharged 80 per cent of the worker's notional weekly earnings. She said that this was the case at the time of her negotiations concerning the worker. She told me of her then practice of advising workers that were interested in redemptions. She said as follows:-

"At that point time we didn't know how section 35(6)(a) was going to be applied by the court, so we had to advise the clients of the possible alternative interpretations. So at that point in time we would advise our clients that there might be a dollar-for-dollar application of the figure, basically the way the law has been interpreted. We would advise the client that if they sustained a further injury - any injury to any body part - the figure agreed would be reduced from their weekly payments of compensation and we would advise them that that would be the worst scenario. We would advise them that the court may apply the Luntz tables and reduce the person's weekly payments of compensation by that figure rather than the figure stated in the documents. Another interpretation that we thought was on the table was that they would be precluded from applying for weekly payments of compensation for closed period of time, basically the time that it would take to use up the redemption lump sum ..... So if someone got a $50,000 redemption, they were our of work for a couple of years, a court could have interpreted that section to say, well the $50,000 was used up in that two-year period, using an average weekly figure the same as Centrelink, which is $530 approximately. So there were alternative interpretations and we tried to explain it to the clients, that any one of those interpretations may be applicable". (tr 97)

19 It was then put to Ms Palios that the worker denied receiving any advice about the consequences of s 35(6) (a). In response to this Ms Palios said:-

"It is totally unlikely. We always have and to this day always raise that section when we're signing up redemption documents. The section 35(6)(a) figure, the preclusion period from DSS, once- well, regulations 16A has always been around when redemptions have been available, but that's less important that the other two. They are the two major effects of accepting redemption payouts and we make sure that we tell the clients. So there's no way that I would have signed up a redemption document without raising those two issues with the client". (tr 98)

20 On 25 February 1997 the worker spoke with Ms Jane Angelopolous from PM&N about a statement that she was to provide in connection with the application for review that was pending before a Review Officer. She brought with her the letter of 18 February and said that she wished to discuss the proposal with Ms Palios. I cannot be sure whether the worker then spoke with Ms Palios. A telephone note on PM&N's file dated 26 February 1997 indicates that the worker gave instructions to PM&N to put an offer in the terms proposed, and by letter dated 3 March 1997 PM&N advised the Corporation's solicitors accordingly.

21 On 14 March 1997 Ms Palios spoke with the Corporation's solicitors and was advised that the Corporation was prepared to settle for a redemption of weekly payments and medical expenses in the sum of $35000 based upon a s 35(6a) figure of 80 per cent of the worker's notional weekly earnings plus back pay and interest and various s 43 assessments. The following day, Ms Palios again spoke with the Corporation's solicitors and was advised that $35000 was the maximum that the Corporation was prepared to pay by way of redemption.

22 On 17 March 1997 the worker gave signed instructions to PM&N to reject the offer of redemption of $35000 and various s 43 entitlements. The written instructions included the following:-

"I wish to remain on weekly payments of compensation as my medical condition is unstable and I require further treatment.

I instruct my solicitors to pursue my lump sum entitlements."

23 This was obviously drafted by PM&N. Although its meaning is not entirely clear I take it to mean that the worker was persuaded to drop the idea of redeeming her future entitlements to weekly payments and medical expenses and that she wanted PM&N to pursue her s 43 entitlements.

24 PM&N were under the impression that independently of the overall settlement negotiations that the Corporation had agreed to concede the s 36 notice that was the subject of the application for review. They therefore attended at a short hearing before a Review Officer on 17 March 1997 in the expectation that orders to that effect would be made. At the hearing it became apparent that that was not so and the matter was adjourned until 12 May 1997 on the understanding that it would proceed to hearing on that day.

25 On 30 April 1997 Ms Angelopolous attended a pre-hearing conference which I assume to be in connection with the hearing scheduled for 12 May 1997. A record on PM&N's file dated 7 May 1997 records that at the pre-hearing conference some further negotiations with the Corporation's solicitors took place and that the worker instructed Ms Angelopolous to accept an offer based upon a redemption of $35000 and various s 43 assessments.

26 I assume that the hearing scheduled for 12 May 1997 was adjourned. On that date the worker rang PM&N and asked if she could borrow $1000. PM&N had previously lent her some money and agreed to do so on this occasion as well. The worker was advised that the redemption documents were expected to arrive in a few days and that an appointment would be made for her to attend to sign them.

27 By letter dated 14 May 1997 the Corporation's solicitors sent to PM&N various documents concerning the redemption including the redemption agreement.

28 Under cover of a letter of the same date the Review Officer dealing with the application for review was advised by the Corporation's solicitors of the terms of settlement concerning weekly payments and was invited to make appropriate orders. The Review Officer eventually made orders in those terms on 2 June 1997.

29 On 22 May 1997 the worker attended at the offices of PM&N where she spoke with Ms Palios and with Mr Kenneth Field, a financial planner.

30 The worker says that Mr Field told her that she was precluded from claiming social security for 18 months following the settlement and that she could not work during this period. She said that she was told that she would have to live off the lump sum payment. She said that she told Mr Field that she intended to pay off a few debts and to live off the rest and that he told her that that was the right thing to do.

31 The worker told me that Ms Palios summarised the terms of the redemption agreement. She claims that Ms Palios did not mention the figure of $286.48 nor was she told that she would be taken to be receiving a continuing weekly payment of $286.48. She said that if she had known that the lump sum payment would affect her for the rest of her life she would not have agreed to accept the offer.

32 Mr Field has no independent recollection of his discussions with the worker and his file records concerning her have been lost or destroyed. All that he could depose to was his then custom and practice. He said that he would not have told her that she could not work during the period when she was precluded from claiming social security. He said that he gives some investment advice and that he encourages workers to get used to living off an amount close to a pension/disability payment.

33 Ms Palios maintains that she would have discussed with the worker matters of the type that I have outlined earlier.

34 After meeting with Ms Palios and Mr Field, the worker signed the redemption agreement and sundry documents. Amongst these she signed a document stating that she had received the following advice:-

"That on the receipt of this redemption payment I have no further entitlements to weekly payments and/or section 32 expenses, in relation to my compensable disability suffered on or about 16/2/95 and on any other date in employment;

That I am aware of the application of section 35(6a) and/or section 35(6b) of the Workers Rehabilitation and Compensation Act, 1986 and I acknowledge that I will be taken to be receiving a continuing weekly payment of $286.48;

Taxation implications of the redemptions payment, if any;

Department of Social Security implications in relation to the redemption payment, if any, and that the amount specified in a Department of Social Security Notice of Charge, if any, will be deducted by WorkCover Corporation fro, my redemption payment;

The receipt of a redemption payment of medical expenses may restrict my entitlements to claim future medical expenses, incurred as a result of this compensable disability, from Medicare or my private Health Fund."

35 The worker signed documents stating that she had received competent professional advice about the consequences of redemption from Ms Palios and that she had received competent financial advice about the investment or use of the redemption payment that was appropriate to her circumstances. Hereinafter I shall refer to these acknowledgments collectively as "the acknowledgment".

36 Although Ms Palios's memory of her dealings with the worker is hazy, she said that she has a clear recollection that she thought that the worker was settling prematurely and that her advice to her was to defer negotiations. This, is in my view, is confirmed by the written instructions given by the worker on 17 March 1996.

37 Ms Palios told me that she understood that the worker was desperate for money, that she wanted to settle for a lump sum there and then, and that she was not interested in her contrary advice. I accept that evidence. Other than that her evidence was generally along the lines of "this is what I would have said" or "this was my then custom and practice". I will comment upon this shortly.

38 There is an obvious difficulty in making findings concerning conversations and events that occurred over four years ago. As to be expected the quality of the testimony of all of the witnesses who gave evidence on these issues suffered as a result of that time lapse. The only witnesses who professed to have an actual memory of the relevant events were Ms Palios and the worker. In the case of Ms Palios it seemed to me that her recollections were based upon her memory of the impression of her dealings with the worker rather than upon an actual memory of what happened. That is scarcely surprising. Ms Palios conducts a large workers compensation practice. She must have advised a large number of workers about similar issues. Against that background one would not expect her to remember more than that.

39 I formed the same view about the worker's evidence. Whilst the relevant events were unique and of some significance for her, such as to make it more likely that she has an actual memory of them, unlike the solicitors involved she did not have her own records of her dealings to assist her memory. In giving her evidence I thought that at times her memory seemed selective and her answers seemed to be the product of her reconstruction of relevant events and conversations. I also felt unable to exclude the possibility that her memory might reflect what she understood, and what she thought was important or not important, as opposed to what was actually said to her.

40 Having taken all of these matters into account I have come to the conclusion that I should place greater weight on the contemporaneous written records than the other evidence placed before me and, where there is a conflict between the written records and that evidence, I prefer the written records.

The worker receives professional and financial advice

41 Accordingly, despite some contrary evidence from the worker, I find as a fact that she was given the advice stipulated in the redemption agreement. I further find that the worker received the advice contained in PM&N's letter to her of 19 February 1996.

42 As to whether other relevant advice was given I cannot be sure. Perhaps Ms Palios did give the worker oral advice about alternative meanings of the redemption agreement along the lines of her usual custom and practice.

43 I think it unlikely that Mr Field would have told the worker that she could not work during the period in which she was disqualified from receiving social security payments. That does not make any sense and I am sure that the worker must have been mistaken in contending that he said that. I think it likely and I find that Mr Field had some general discussions with the worker about what she intended to do with the money, that he gave her some very general advice about investments and that he told her that she had to get used to living of an amount similar to a pension/disability payment.

44 For what it is worth I will now turn to consider whether the advice given satisfies the relevant statutory criteria prescribed by s 42(2).

45 I am aware that in practice the focus of negotiations is often directed towards a lump sum resolution of a worker's claim and once agreed, the fact that some or all of the lump sum is paid through a redemption agreement is very much an afterthought. That fact cannot, however, influence the way in which the relevant legislative provisions must be interpreted. The provisions must be construed so as to reflect what Parliament intended by the words that it has used. In undertaking that exercise I think the starting point is to reflect upon what is meant by the term "redemption" and then to consider the relevant legislative history.

46 In my opinion, the concept of redemption as provided for by s 42, is the same as it has always been recognised to be in workers compensation cases, and that is as described by Wilson J in Harrington v Harrington [1981] HCA 42; (1981) 155 CLR 317 at 332 thus:-

"I think it is true to say, as a matter of history, that the fundamental idea implicit in the notion of redemption was always that of conversion from one form to another of the liability of an employer to pay compensation to a worker. The concept of a fair exchange lay at the heart of it."

47 As was explained by the Full Bench in Tsimpanos v WorkCover [2001] SAWCT 138 Parliament has through a process of legislative amendments dramatically changed the process of converting a recurring liability to a lump sum. It has replaced a limited and highly regulated regime with one that has no limitations on the amount payable, has no independent review, and which leaves it up to the parties to determine by agreement whether there will be a conversion and if so on what terms, subject to certain criteria being met. These include requirements that the worker must receive competent professional and financial advice about the matters prescribed as well as advice from a recognised medical expert about the predictability of the extent of his or her incapacity.

48 These requirements are clearly intended to act as safeguards. Amongst the dictionary definitions of the word "competent" is "suitable or sufficient for the purpose". In my opinion, that is the meaning to be attributed to it here. That is, that competent, professional and financial advice means advice that is sufficiently comprehensive to enable a worker to make an informed decision as to whether or not to agree to the proposed redemption.

50 In this case, in my opinion, the redemption agreement clearly purports to exchange the amount $34500 for recurring weekly entitlement of $286.48 per week. In my opinion, competent, professional advice required the worker to be advised of that. I am in some doubt as to whether that occurred here. If the advice that the worker received was along the lines of the advice that was given in PM&N's letter of 19 February 1996 I think that I would be satisfied that the worker had received competent advice on this issue. But, if the advice that the worker received was along the lines suggested by Ms Palios in her oral evidence based upon her then custom and practice, I am not so sure that I would be so satisfied. That evidence tends to suggest that Ms Palios did not know what exactly formed the basis of the exchange by the payment of the lump sum, that is, what outstanding liability was the subject of the redemption. If there were any uncertainty about it, I would have thought that the prudent course would have been to clarify the position with the Corporation. Be that as it may, the point is, that if Ms Palios was uncertain as to what was being redeemed and she advised the worker of that fact, how could the worker make an informed decision as to whether or not to accept the redemption. One might ask: How could the worker tell if it was a fair deal if she did not know for sure what the deal was?

51 Moreover, given, as Wilson J reminds us in Harrington (supra), that at the heart of a redemption is the exchange of one liability for another, the worker needed to know, not just what liability was proposed as being discharged by the redemption, but also how the two could be compared.

52 There is nothing in the evidence or material that has been placed before me that indicates that the worker was ever given that sort of advice.

53 The importance of that sort of advice will become apparent when one considers the facts in this case. At the time of executing the redemption agreement the worker was aged 27 years. Given that the Act imposes a potential liability on the compensating authority to pay weekly payments to a worker to normal retirement age, which in this case one could presume to be 65 years, a simple arithmetic calculation of the aggregate liability (before discount) would have revealed that the Corporation was seeking to redeem by the lump sum payment of $34500 an aggregate amount that potentially exceeded $500000. Further simple calculations would have further revealed that for a sum of $34500 to generate, through investment, income of $286.48 per week, the return on the investment would have had to exceed 40 per cent per annum.

54 Armed with this information, together with financial advice about the availability of such investments and the risks associated with them, the worker would have been in a position to make an informed decision whether or not to accept the proposal.

55 Having not received that advice (and I find that she did not receive it) I fail to see how the worker in this could have been able to properly evaluate whether or not to accept the offer of redemption that had been made.

Can the worker resile from here signed assertion that she received competent advice?

56 Most of the focus in this case was directed to the nature of and competency of the advice that the worker was given. I subsequently heard Blocki v WorkCover/CGU Workers Compensation (SA) Ltd (Pyrotech Fire Protection Pty Ltd) [2001] SAWCT 144. In that case the primary focus of the debate centred on whether the principle of estoppel could apply to acknowledgments of the type under consideration here. Because of the potential impact of that case I forwarded to the parties copies of the submissions made and invited further submissions. Both parties took up that invitation.

57 As I explained in Blocki (supra), whilst the law generally attempts to ascertain the truth and to apply itself to the truth, in circumstances where the principle of estoppel applies it might lead to a result whereby the case is decided by reference to assumed rather actual facts. In other words, if the principle applies to the acknowledgment, the fact that in my opinion the worker did not receive competent financial advice and may not have received competent professional advice about the consequences of the redemption agreement will not be to the point, because it is not open for the worker to contend that she did not receive competent advice.

58 In Blocki I also explained why it was that I consider that the principle of estoppel can apply to a redemption agreement made under the Act. I shall not repeat what I said there. It is sufficient for present purposes for me to record that for the reasons contained therein I do not consider the fact that the Act prescribes the receipt of competent professional and financial advice displaces the operation of the principle of estoppel, nor do I consider the fact that the worker in executing the acknowledgment was expressing an opinion, that the opinion expressed was one that she was not qualified to give and as it turns out, the opinion was wrong, excludes its application.

59 What needs to be determined is whether the worker, through the acknowledgment, made a representation intending it to be relied upon by the Corporation, that was relied upon by the Corporation, and that that reliance resulted in the Corporation acting to its detriment.

60 As I did in Blocki, I approach this task with the words of Murray CJ, Angas Parsons and Napier JJ in Trenorden v Martin [1934] SASR 340 at 343 in mind. In undertaking a like exercise, their Honours said:-

"... it is necessary to remember that the intention can be implied, that is to say, "a man is taken to intend the natural and probable consequences of his acts, and cannot evade civil responsibility for these consequences by saying that he never intended any result to ensue." See Cababe on Estoppel, p 64, and see Sarat Chundr Dey v Gopal Chunder Lala, (1892) 56 JP 741 Lr 19 Ind Ap 203 at pp 215-219"

61 The worker in her evidence said that she did not read well and that she had difficulty understanding things. She conveyed in her evidence the impression that the circumstances surrounding the execution of the redemption agreement and the acknowledgment were rushed and somewhat bewildering. Even if all of this was true, she must have known that these were important documents that had to be completed before the redemption agreement could proceed and I think it is implicit and I find that she knew that the Corporation would rely upon them and the statements she made within them in paying out the settlement money and processing the collateral agreements concerning s 43 entitlements and the abandonment of it asserted right to discontinue weekly payments.

62 It might be that the worker was pressed for money. That accords with Ms Palios's evidence that the worker seemed anxious to settle despite advice from her to wait. It also accords with the fact of the worker's loans from PM&N. This might well have clouded the worker's judgment in giving instructions to accept the Corporation's offer. However as was explained by the Full Bench in Tsimpinos it is not the Tribunal's role to review the fairness of the redemption agreement. This might only be relevant if it could be shown that the Corporation took advantage of the worker's circumstances. I do not need to explore this further in this case because this has not been suggested and there is no evidence to suggest that it is so. The negotiations between the parties and their respective solicitors appear to have been conducted properly and there is nothing to indicate that the Corporation or its solicitors were aware that anything was amiss. In other words there is nothing to indicate that they did not genuinely believe that the acknowledgment was true.

63 The Corporation clearly acted upon the representations contained in the acknowledgment to its detriment. In addition to the matters just mentioned it is implicit that in doing so it failed to avail itself to strategies that it otherwise might have invoked to limit its liability to pay compensation to the worker and I so find.

63 I therefore conclude that the pre-requisites to the application of the principle of estoppel have been met. It follows that the worker cannot assert that she did not receive competent professional advice about the consequences of the redemption agreement or competent financial advice about the investment or use of the money that she was to receive.

64 The Corporation is therefore entitled to take into account the redemption agreement in determining the worker's entitlements to income maintenance in respect of the disability that she sustained in the course of her employment with Wingfield.

65 As I said at the outset I have not heard evidence from the parties as to what is the appropriate assessment of the worker's notional weekly earnings in connection with this disability should be. I therefore adjourn further consideration of this judicial determination to enable the parties to reach agreement on this and in default of their agreement I will relist this matter.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.