Green Fenton and Fenton v City of Playford, Lga of SA and Workcover [2000] SAWCT 9

3 In respect thereof, the respondent contends that the deceased entered into a redemption agreement on 31 July 1996, and that the effect of that agreement is that the deceased had redeemed all of his future entitlements to weekly payments of income maintenance pursuant to the Act. Next it contends that the proper interpretation of s 44(8) of the Act which provides:-

"Weekly payments shall not be paid under this section beyond the date at which such payments would, assuming that the worker had survived but had been permanently incapacitated for work, have ceased to be payable to the worker."

means that in those circumstances the applicants' claims for weekly payments must fail.

4 This is but one of a number of issues in dispute between the parties in this case. It was submitted however, that this was an important issue, the resolution of which might reduce the hearing time required for the trial of this action and might improve the prospects of the settlement of the case.

5 In those circumstances, the parties requested that this aspect of the dispute be referred directly to a Full Bench of the Tribunal in accordance with s 94A(2). The Full Bench of the Tribunal in Unisure Pty Ltd (Flinders University) v Enrique Gomez-Soto JD131/1999 concluded that it was competent for an aspect of a particular dispute to be referred to the Full Bench in accordance with that provision.

7 The WorkCover Corporation ("the Corporation") exercised the rights conferred upon it by s 123A of the Act in intervening and seeking to be heard in these proceedings.

8 The respondent's submission was that unlike the predecessor to the Act, namely the Workers Compensation Act 1971 ("the old Act"), s 44(8) has created a direct relationship between the deceased's worker's entitlements to weekly payments and potential entitlements to the dependents of the deceased.

9 In particular, we were taken to s 49(3) of the old Act which provided:-

"Amounts paid or payable before the death of the worker as weekly payments of compensation for total or partial incapacity for work resulting from the injuries shall not be deducted from, but should be payable in addition to, the compensation payable under sub-section (1) or (2)."

The respondent submitted that absent such a provision in the Act and given the terms of s 44(8) Parliament has made it clear that a dependent's right to weekly payments is contingent upon the deceased having, at the time of his or her death, a right to receive weekly payments of income maintenance.

10 The applicants' contend that s 44(8) of the Act does not in any way abrogate from the general principle that the rights and entitlements of the dependents of a deceased worker are not contingent upon the deceased worker's subsisting rights to compensation at the time of his or her death. Reference was made to a decision of the Supreme Court of Western Australian in Midalco Pty Ltd v Bonomi (1987) WAR 299 and to the reference in that case to some earlier English decisions, Oldbury Urban District Council [1912] 2 KB 317 and Manton v Cantwell [1920] AC 781. In the latter case Viscount Finlay, at 791 said:-

"My Lords, I do not propose to say anything about the supposed estoppel except this, that it is absolutely clear that the right of dependants is not in any way directly derived from the man whose death has been occasioned by an accident in the course of his employment; they recover compensation for loss of the benefit which they would have derived from the continuance of his life, but their right in itself is independent and there could be no estoppel by reason of the agreement made between the employer and the employee."

11 It was submitted on behalf of the applicants that the only purpose of s 44(8) was to give effect to s 35(5), which provides "Weekly payments are not payable in respect of a period of incapacity for work falling after the date on which the worker reaches retirement age."

12 The difficulty that we have with the applicants' submission is, if that was all with which s 44(8) was concerned, one would have expected the sub-section to say so.

13 Mr Walsh, counsel for the Corporation contended that s 44(8) applied in any circumstances where there was no ongoing entitlement to weekly payments at the time of the deceased's death, including a discontinuance of weekly payments occasioned by the invocation of s 36. We reject that submission. In our view, the keys words of the sub-section are "have ceased to be payable". The word "ceased" contemplates something final. In our view, the provision envisages that the entitlement to weekly payments has come to an end. The section directs one to assume that the worker would have survived. In those circumstances it could only be said that the deceased's entitlements to weekly payments had come to an end if he or she had attained the age prescribed by s 35(5) or if by some other means his or her entitlement to continuing weekly payments had been permanently extinguished.

14 In our view, in an appropriate case, that may be achieved by redemption. S 42(1)(a) enables the parties by agreement to redeem through a capital payment the liability to make weekly payments. That can include the liability to pay all future weekly payments. In our view, it is permissible for the parties to reach agreement through the payment of a lump sum to extinguish the worker's ongoing entitlements to weekly payments.

15 Hence, in an appropriate case, s 44(8) may achieve the purpose for which the respondents contend.

16 But that is not to say that the redemption agreement entered into here, has that affect. Assuming, but not deciding that it is competent for this Tribunal to interpret its terms, we have not heard any argument from the parties regarding the proper construction to be placed upon that agreement. We are therefore not to be understood as acknowledging that s 44(8) has any role to play in this case. All that we are deciding, is that depending upon the proper construction of the redemption agreement, that provision may feature.