J & H Timbers Pty Ltd v Nelson

In my opinion the appeal should be dismissed. I should add that for my part I am entirely satisfied with the reasons given by the Supreme Court for dismissing the appeal to that Court.

In this Court it has been decided that, to warrant the making of an award, a worker claiming an award of compensation must prove not only injury and incapacity for work, but, where that incapacity is less than total, financial loss. In Thompson v. Armstrong & Royse Pty. Ltd. [1] , Latham C.J. said [2] :

The cases show that in order that an employer should become liable actually to pay compensation in respect of a particular period there must be (1) an injury of the worker as defined in the Act; (2) a resulting incapacity for doing the work for which he was earning wages; (3) a consequent economic loss of wages. If in fact he is still receiving those wages in respect of a particular period he fails to establish the third element and the employer is not liable in respect of that period - though he would become liable if, the incapacity continuing, he ceased to pay the wages. 1. (1950) 81 C.L.R. 585. 2. (1950) 81 C.L.R., at p. 598.

In Phillips v. The Commonwealth [3] , the Court decided that the onus lies upon an employee to show that he should be awarded compensation as a person partially incapacitated with a diminished earning capacity.

A somewhat different view had earlier been taken by the Full Court of the Supreme Court of New South Wales in Bryer v. Metropolitan Water Sewerage and Drainage Board [4] , where Jordan C.J. said [5] :

The burden of proof lies upon the worker to establish (1) that he has received a personal injury arising out of and in the course of his employment, and (2) that as a result he has sustained some incapacity for work, i.e. incapacity for obtaining or performing work of the kind in which he was employed at the time of the accident, or of earning full wages, to the same extent as he could before the injury, assuming such work to be available: Joy v. Morton [6] ; Jones v. A. & E. Pettifer Ltd. [7] . When the worker establishes this, he is prima facie entitled to the compensation provided for by s. 9: Moore v. Barkey [8] ; McCann v. Scottish Co-operative Laundry [9] , unless it appears that the incapacity is partial only, and that it is necessary to limit the weekly payments in the manner provided for by s. 11. The burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to involve a limitation of payments under s. 11 is upon the employer: Proctor & Sons v. Robinson [10] ; Cardiff Corporation v. Hall [11] . This burden may be discharged by material elicited from the worker or his witness or by evidence called on behalf of the employer. But it is for the employer to supply the necessary material to the extent to which it may not be supplied by the evidence given on behalf of the worker. The Court of Appeal in this case followed Bryer's Case [1] . 1. (1939) 39 S.R. (N.S.W.) 321. 2. (1939) 39 S.R. (N.S.W.), at pp. 331-332. 3. (1922) 15 B.W.C.C. 33. 4. (1929) 22 B.W.C.C. 405. 5. [1923] A.C. 790, at p. 795. 6. [1936] 1 All E.R. 475. 7. [1911] 1 K.B. 1004. 8. [1911] 1 K.B. 1009. 9. (1939) 39 S.R. (N.S.W.) 321.

In my opinion this Court should follow the guidance afforded by the decisions of this Court. My reason for this depends not merely upon the superior authority of the decisions of this Court to Bryer's Case [1] . Those decisions, rather than Bryer's Case [1] , manifest, I think, a correct appreciation of the relationship of ss. 9 and 11 of the Workers' Compensation Act.

1. (1939) 39 S.R. (N.S.W.) 321. 2. (1939) 39 S.R. (N.S.W.) 321.

It is incorrect to regard s. 11 as merely putting a ceiling upon the award to be made pursuant to s. 9. There are, as was correctly decided in Australian Iron and Steel Pty. Ltd. v. Elliott [2] , two aspects to s. 11. In the first place it adds a limitation to the amount that can be awarded for partial incapacity. I say it adds a limitation because a different limitation, although of the same character, is to be found in s. 9 itself, viz. that a weekly payment shall not exceed seventy-five per cent of the worker's average weekly earnings. The limitation in s. 11 is of the same character as that appearing in s. 9, and in view of the opening words of s. 9 it cannot matter, on the question of onus of proof, whether a limitation is to be found in s. 9 itself or in s. 11. It is, however, the second aspect of s. 11 that is of particular importance here; i.e. it requires the payment awarded to bear such relation to the amount of the difference referred to therein "as under the circumstances of the case may appear proper". That difference is between (1) the weekly amount which the worker would have been earning as a worker, but for the injury, had he continued to be employed in the same or some comparable employment, and (2) the average weekly amount he is earning, or is able to earn, in some suitable employment or business after the injury. This provision requires, as a preliminary to making an award for partial incapacity, the ascertainment of the foregoing difference. The onus of proving that there is such a difference rests upon the worker seeking the award and not upon the employer opposing the application. This the learned judge constituting the Workers' Compensation Commission in this case rightly recognized when he said:

I must have regard to the difference between what he was earning or was able to earn in suitable employment or business after the injury and what he probably would have earned but for the injury had he continued to be employed as a worker in the same or some comparable employment. 1. (1966) 67 S.R. (N.S.W.) 87.

In my opinion, in so far as the decisions of the Court of Appeal here and of the Full Court in Bryer's Case [1] would throw upon the respondent to an application the onus of proving that difference, they were wrongly decided.

The difficulty in this case arises not because the learned judge constituting the Commission failed to appreciate the necessity for finding the difference in question, but because he himself said he could not find either (1) what the worker was earning, or was able to earn, in a suitable employment or business after the injury, or (2) what he probably would have earned, but for the injury, had he continued to be employed as a worker in the same or some comparable employment. This deficiency of evidence, of course, made the determination of a difference a matter of great difficulty, if not of impossibility, in the circumstances of this case. His Honour dealt with this problem as follows:

Under s. 11 (1) (a) the normal procedure in looking to an award of partial incapacity is to find the two sums, to the difference between which one must have regard in approaching the question of an apt award. In the present case it appears to me in relation to the matter of average weekly earnings after the injury that I should attend to what the applicant has been able to earn in some suitable employment or business and desist from the effort to reconstruct what in fact he has earned. That is rendered all the more necessary in some respects by his absence from work for the short periods mentioned for other causes. In relation to the question of the probable weekly earnings in terms of s. 11 (1), I have considered approaching the matter to endeavour to fix some specific figure as representing that amount. This is the quite exceptional case in which I feel driven back to approach the matter from the different point of view of finding the difference between the two amounts without finding what those amounts really are. It appears to me that in the circumstances of this case it is easier for me to do justice between the parties by having regard to the effect of the disability from time to time upon the earning power of a man in the position of the applicant than it is for me to arrive at that difference by first ascertaining separately the amounts, the finding of the difference between which is the purpose of the exercise. Having said this, his Honour continued: I make an award for the applicant for $23.50 per week from 20th February 1967 to 1st June 1967. This part of the award was for total incapacity and is not in question. Turning to the question of compensation for partial incapacity, his Honour then said: Having regard to my view of the general course of the applicant's recovery in the orthopaedic sense and taking the period from 2nd June 1967 to date it appears to me that over that period the probable extent of the difference referred to in s. 11 (1) (a) is - and it is impossible to be dogmatic - is of the order of about $15 per week. I make an award for the applicant under s. 11 (1) (a) for $15 per week from 2nd June 1967 to date and continuing.

In the order made by the Commission the following findings are set out:

(a) the applicant on the Nineteenth day of February 1967, received injury to his right elbow arising out of and in the course of his employment by the respondent;

(b) the respondent in the course of and for the purposes of its trade or business entered into an arrangement with the applicant under which the applicant agreed to haul timber and the applicant received the said injury while actually performing some part of the said work himself;

(c) that as a result of the said injury the applicant was totally incapacitated for a period from the Twentieth day of February, 1967, to a date which cannot exactly be determined and was partially incapacitated thereafter up to the present time and remains partially incapacitated;

(d) the applicant's average weekly earnings not less than Twenty-three dollars Fifty cents plus one-third;

(e) the evidence does not establish that the depressive condition from which the applicant has suffered resulted from the said injury.

I would suppose that (d) relates to pre-accident earnings. It is to be observed that here there is no finding to afford any basis for determining the amount of an award for compensation for partial incapacity, but the Commission nevertheless ordered and awarded as follows:

(a) That the respondent do pay the applicant weekly compensation at the rate of -

(i) Twenty-three Dollars Fifty Cents from the Twentieth day of February, 1967, to the First day of June, 1967, on the basis of total incapacity;

(ii) Fifteen Dollars from the Second day of June, 1967, on the basis of partial incapacity, such weekly payment to continue during the applicant's said partial incapacity, or until the same be ended, diminished, increased or redeemed in accordance with the provisions of the above-mentioned Act.

The learned judge, not having indicated how he reached the conclusion that he expressed in his reasons for judgment by the words "the probable extent of the difference referred to in s. 11 (1) (a) is - and it is impossible to be dogmatic - is of the order of about $15 per week", counsel for the respondent here was invited to point to any material before the Commission which could support such a finding, but they could provide no assistance. I have examined the material in the appeal book myself and I can find nothing to support such a finding. The figure, for all that appears in that material, could have been $5, $10, or $20 just as well as $15. There is, therefore, no basis on which to support the award of $15 a week for partial incapacity. In my opinion it is not for the Commission to guess a figure where the Act treats that figure as one susceptible of determination by evidence - as, of course, it is.

In the foregoing circumstances the Court of Appeal dismissed the appeal against the award, holding, incorrectly as I think, that the award could not be impeached on the ground that there was no evidence to warrant the choice of the amount for which it was made because the onus of satisfying the Commission as to the amount of the award to be made for partial incapacity lay upon the employer, not the worker. However, the true position is that the onus was upon the worker to provide material upon which the court could make an award according to the requirements of s. 11. The worker having provided no material sufficient for that purpose, the award made was not in conformity with s. 11.

In these circumstances I think that the appeal should be allowed.

The Workers' Compensation Act, 1926-1967 N.S.W. provides for compensation for injured "workers". A worker is defined as a person who has entered into a contract of service or apprenticeship with an employer. In addition certain persons, including suppliers of timber and timber-getters as described, who are employed as independent contractors rather than as servants and thus not within the primary definition of a worker, are deemed to be workers for the purposes of the Act. The respondent in this case was such a person. When he was injured he was deemed to be a worker employed by the appellant. He was injured in the course of this employment. As a result of his injury he was for a time totally incapacitated. Then he became partially incapacitated within the meaning of the Act. This meant that he was entitled to compensation by weekly payments measured by s. 11 (1) (a) of the Act, as amended in 1964. This provision is as follows:

In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.

Section 36, as amended in 1964, of the Act empowers the Commission to determine among other things: "the existence and degree of incapacity for work by reason of an injury"; the degree of diminution of earning capacity by reason of an "injury"; "the amount of average earnings of a worker"; and, most importantly, "the weekly amount or sum in accordance with subsection one of section eleven".

In this case the Commission made an award in favour of the applicant before it, the present respondent, for fifteen dollars per week for the period of partial incapacity. The employer, the present appellant, appealed to the Supreme Court (Court of Appeal Division), alleging errors in matters of law within the meaning of s. 36 (4) (a) of the Act as it has stood since 1960. By its notice of appeal it sought to have the award set aside and the matter remitted to the Commission for further hearing and consideration. The Supreme Court dismissed the appeal [1] . The appellant now appeals to this Court pursuant to special leave granted. I shall assume that an appeal thus lies to this Court from the decision of the Supreme Court, although after further consideration of the matter I have misgivings, for s. 37 (4) (d) now seems to me to spell finality.

The problem of the case is the difficulty of applying the words of s. 11 (1) (a) when the worker is an independent contractor performing his contract by the use of his own equipment. The section puts an upper limit to the amount of the weekly payment that can be awarded in a case of partial incapacity. Apart from postulating an upper limit it leaves it to the Commission to award a weekly amount that "shall bear such relation to" the upper limit "as under the circumstances of the case may appear proper". The upper limit, as I have called it, is the difference between two amounts of earnings. The former is expressed as an amount that was earned before the injury "as a worker". The latter is expressed in more general terms, by reference to actual earnings or an ability to earn in some suitable employment. It obviously does not follow, as an abstract proposition, that a predicated remainder postulates a particular initial sum and a particular subtrahend. An amount as the upper limit that s. 11 (1) (a) sets can be stated without stating the two amounts used to produce it. His Honour who tried the case in the Commission abandoned any attempt to determine with precision what were the earnings of the respondent before his injury, as the records of his affairs did not enable his weekly gains from his contract to haul logs to the appellant's mill to be segregated from other gains. I think that his Honour was right in not attempting to compute this. But I say so not so much because the computation was difficult or impossible by reason of insufficient data as because it was in my opinion irrelevant and unnecessary. The Act is concerned with compensation for the total or partial incapacity of a worker - that is, the destruction or diminution of his earning capacity measured by his earnings "as a worker". The question is not the same as is involved in assessing "economic loss" in an action for damages for personal injuries. The earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money. In the present case the respondent carried on a business on his own account, using his own truck and other equipment. To assess his profits for a given period it, would be necessary to set against receipts all actual and notional outgoings of the undertaking, including all those relevant to the maintenance of the equipment. These might if the equipment were the contractor's property include an allowance for its depreciation; if it were not owned by him, outgoings for its hire or hire purchase. But to my mind the respondent's profits and gains from his business before he was injured were irrelevant. He was deemed to be a worker in another man's business. In this artificial and notional situation, "the weekly amount which he would probably have been earning as a worker" was, for the purposes of the Act, such sum as notionally represented the value of his wage for so much of his time as he devoted to the performance of his contract with the appellant. In the circumstances I see no reason why his Honour was precluded from using his own knowledge of industrial conditions and wages, and concluding therefrom that the diminution of the respondent's earnings resulting from his partial incapacity as assessed by a medical board amounted to $15 a week and making an award accordingly. I think that what was said by the Supreme Court in Kemp v. Darling Island Stevedoring & Lighterage Co. Ltd. [1] is as applicable in relation to pre-injury earnings as to post-injury earnings and to the difference.

I see no reason to disagree with anything that Jordan C.J. said in Bryer v. Metropolitan Water Sewerage and Drainage Board [1] . An employer before the Commission cannot in my view in a case of partial incapacity leave it to the applicant worker to establish the statutory limit, and then say that, if he does not do so, no award can be made. The question, especially in the case of a person deemed to be a worker, is not, I think, to be equated with rules about the onus of proof in a civil action. The Commission is obliged to make an award if incapacity be established. It can act on any material within its knowledge that it considers sufficient to enable it to do so. The Supreme Court, I consider, rightly upheld the decision of the learned judge of the Workers' Compensation Commission simply because it was not shewn to have been based on error of law. The appellant had not adduced any evidence establishing that some other amount ought to have been awarded. I need say no more, for I agree in the conclusions of the Chief Justice and I concur generally in his reasons in his judgment, which I have had the benefit of reading.

I would dismiss the appeal - and with costs which in any event the appellant undertook to pay.

I have had the advantage of reading the judgment prepared by my brother Menzies. I agree with it and wish only to add a few words. I have no doubt that in a case in which an employer seeks to have an award for weekly payments ended or diminished under s. 60 of the Act the onus lies on him to establish all the facts necessary to justify such a course being taken by the Commission. And I would point out that in each of the two cases, namely, Proctor & Sons v. Robinson [2] and Cardiff Corporation v. Hall [3] , upon which Jordan C.J. relied in Bryer's Case [1] for the proposition that "the burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to involve a limitation of payments under s. 11 is upon the employer" the Court was dealing with an application made by the employer to review the amount of weekly payments payable under an existing award. Where, however, a worker claims that an award should be made in his favour on the ground that he is partially incapacitated it seems to me that it is a necessary part of his case to establish the facts necessary to enable the Commission to determine what is the "difference" to which s. 11 (1) (a) of the Act refers, namely, "the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury", so that it may proceed to fix the appropriate sum to be awarded. This, as my brother Menzies has pointed out, accords with what Latham C.J. said in Thompson v. Armstrong & Royse Pty. Ltd. [1] , and with the decision of this Court in Phillips v. The Commonwealth [2] . With all respect to those who sat in Bryer's Case [3] I am of opinion that what Latham C.J. said in Thompson's Case [4] and what this Court decided in Phillips' Case [2] should be followed and that this appeal should therefore be allowed.

1. [1911] 1 K.B. 1004. 2. [1911] 1 K.B. 1009. 3. (1939) 39 S.R. (N.S.W.) 321. 4. (1950) 81 C.L.R. 585, at p. 598. 5. (1964) 110 C.L.R. 347. 6. (1939) 39 S.R. (N.S.W.) 321. 7. (1950) 81 C.L.R. 585. 8. (1964) 110 C.L.R. 347. Gibbs J.

On 16th February 1967 the respondent sustained an injury to his right arm while unloading timber which he was hauling pursuant to an agreement with the appellant. The circumstances were such as to attract the operation of s. 6 (5) (a) of the Worker's Compensation Act, 1926 N.S.W. (as amended) ("the Act"), so that the respondent is for the purposes of the Act to be deemed to be a worker employed by the appellant. It is not disputed that the injury which the respondent received arose out of or in the course of what is deemed to be his employment by the appellant. On an application made by the respondent for compensation under the Act, the Workers' Compensation Commission of New South Wales found that as a result of the injury the respondent was totally incapacitated for a time and was thereafter partially incapacitated. The Commission ordered and awarded that the appellant pay the respondent weekly compensation at the rate of - (i) $23.50 from 20th February 1967 to 1st June 1967, on the basis of total incapacity; (ii) $15.00 from 2nd June 1967, on the basis of partial incapacity, such weekly payment to continue during the respondent's said partial incapacity or until the same be ended, diminished, increased or redeemed in accordance with the provisions of the Act. The award in respect of the period of total incapacity has not been challenged. However the appellant appealed to the Court of Appeal of the Supreme Court of New South Wales against the award of $15 per week made on the basis of partial incapacity. The appeal was dismissed [5] and a further appeal has been brought to this Court by special leave.

By s. 7 (1) (a) of the Act a worker who has received an injury (which means personal injury arising out of or in the course of employment - s. 6 (1)) whether at or away from his place of employment shall receive compensation from his employer in accordance with the Act. Section 9 of the Act provides, inter alia, that subject to the provisions of that section and of ss. 10 and 11, where total or partial incapacity for work results from the injury the compensation payable by the employer under the Act shall include a weekly payment in respect of the worker during the incapacity which shall not exceed seventy-five per cent of his average weekly earnings for the previous twelve months if he has been so long employed by the employer, but if not, then for any less period during which he has been in the employment of the same employer. The compensation payable under that paragraph is not to exceed a specified sum which at all material times until 18th December 1967 was $23.50 per week. Section 11 (1) (a) provides as follows:

In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.

Before the injury the respondent had been engaged in hauling timber and also, to some extent, in dealing in sawn timber. He commenced the work of hauling timber under his agreement with the appellant in November 1966 and from that time until the date of the accident the greater part of his work consisted of the hauling of logs to the appellant's mill. After the respondent returned to work again, some time about the end of May 1967, he was compelled, because of his injury, to give up the business of log hauling and instead mainly engaged in timber felling with a chain saw. Evidence was given by both parties directed to show the financial position of the respondent both before and after the injury but the learned judge who constituted the Workers' Compensation Commission obviously experienced difficulty in basing a conclusion upon that evidence. An attempt was made to compare the income of the respondent with that derived by two other hauliers but the learned judge found it impossible to draw any useful comparison. As to the evidence that dealt directly with the respondent's own earnings, the learned judge found it impossible to determine what part of his gains during the financial year in which the accident occurred was applicable to timber hauling and what part to other activities, and he said:

I think it would be quite impossible to attempt to reach any view that I would be justified in acting upon as to any definite amount of money earned by the applicant from his work under the respondent.

When he came to consider the application of s. 11, the learned judge said that in relation to the average weekly earnings after the injury he should attend to what the respondent had been able to earn in some suitable employment or business and desist from the effort to reconstruct what he had in fact earned. However, he did not say how much he considered the respondent was able to earn. He went on:

In relation to the question of the probable weekly earnings in terms of s. 11 (1), I have considered approaching the matter to endeavour to fix some specific figure as representing that amount. This is the quite exceptional case in which I feel driven back to approach the matter from the different point of view of finding the difference between the two amounts without finding what those amounts really are. It appears to me that in the circumstances of this case it is easier for me to do justice between the parties by having regard to the effect of the disability from time to time upon the earning power of a man in the position of the applicant than it is for me to arrive at that difference by first ascertaining separately the amounts, the finding of the difference between which is the purpose of the exercise. (Cf. Hamilton v. Shelton Co. Ltd. [1] ). It is not quite clear for what purpose the learned judge cited Hamilton v. Shelton Co. Ltd. [2] , which does not seem to bear on the question which he had been discussing at that point of his judgment, but it may have been for the proposition, enunciated by Atkin L.J., [3] , that in deciding what a worker is able to earn after the accident the judge "is entitled to take into account his own knowledge of the labour conditions in the district". The learned judge went on to say that there did not appear to him to be any reason to award anything less than the actual amount of the difference. He then proceeded to make an award of $23.50 per week in respect of total incapacity and said that: having regard to my view of the general course of the applicant's recovery in the orthopaedic sense and taking the period from 2nd June 1967 to date it appears to me that over that period the probable extent of the difference referred to in s. 11 (1) (a) is - and it is impossible to be dogmatic - is of the order of about $15 per week. The formal order in which his decision is recorded contains a number of findings, including a finding (1 (d)) that "the applicant's average weekly earnings not less than twenty-three dollars fifty cents plus one-third". No doubt this was intended to be a finding as to the respondent's average weekly earnings for the period during which he was deemed to be in the employment of the appellant and, if upheld, it supports the award of $23.50 made for total incapacity under s. 9 of the Act. I have already said that this part of the award is not challenged. 1. (1926) 19 B.W.C.C. 475, at pp. 495-496. 2. (1926) 19 B.W.C.C. 475. 3. (1926) 19 B.W.C.C., at p. 495.

The Court of Appeal, in affirming the judgment of the learned judge, accepted [1] as correct the following statement by Jordan C.J. in Bryer v. Metropolitan Water Sewerage and Drainage Board [2] as to the onus of proof in proceedings under the Act:

The burden of proof lies upon the worker to establish (1) that he has received a personal injury arising out of and in the course of his employment, and (2) that as a result he has sustained some incapacity for work, i.e. incapacity for obtaining or performing work of the kind in which he was employed at the time of the accident, or of earning full wages, to the same extent as he could before the injury, assuming such work to be available: Joy v. Morton [3] ; Jones v. A. & E. Pettifer Ltd. [4] . When the worker establishes this, he is prima facie entitled to the compensation provided for by s. 9: Moore v. Barkey [5] ; McCann v. Scottish Co-operative Laundry [6] , unless it appears that the incapacity is partial only, and that it is necessary to limit the weekly payments in the manner provided for by s. 11. The burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to involve a limitation of payments under s. 11 is upon the employer: Proctor & Sons v. Robinson [7] ; Cardiff Corporation v. Hall [8] . This burden may be discharged by material elicited from the worker or his witnesses or by evidence called on behalf of the employer. But it is for the employer to supply the necessary material to the extent to which it may not be supplied by the evidence given on behalf of the worker. Their Honours held that there is no difference in respect of the onus of proof between an ordinary worker and a person who is deemed to be a worker by the provisions of s. 6 (5) (a) of the Act, that accordingly the appellant bore the burden of proving the facts necessary to limit the amount of compensation under s. 11 (1) (a) and that this onus had not been discharged. They added that the Commission was entitled to use its own experience and knowledge in fixing the amount of compensation. 1. (1970) 92 W.N. (N.S.W.), at pp. 634-635. 2. (1939) 39 S.R. (N.S.W.) 321, at pp. 331-332. 3. (1922) 15 B.W.C.C. 33. 4. (1929) 22 B.W.C.C. 405. 5. [1923] A.C. 790, at p. 795. 6. [1936] 1 All E.R. 475. 7. [1911] 1 K.B. 1004. 8. [1911] 1 K.B. 1009.

The learned primary judge did not expressly deal in his reasons for judgment with the question of the onus of proof. However the first submission made on behalf of the appellant is that the onus lies on the worker of proving his claim to receive compensation on the basis that his injury has resulted in partial incapacity which has caused him economic loss, and that there is no evidence in the present case that the respondent suffered any economic loss after the period of his total incapacity had ceased.

I cannot believe that in an ordinary case the question whether the onus of proving the facts necessary to establish the difference referred to in s. 11 (1) (a) lies on the worker or on the employer is of much practical importance, but with great respect I am unable to accept as correct the dictum of Jordan C.J. in Bryer v. Metropolitan Water Sewerage and Drainage Board [1] that:

The burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to involve a limitation of payments under s. 11 is upon the employer. 1. (1939) 39 S.R. (N.S.W.), at p. 332.

The two decisions which his Honour cited in support of this proposition were both cases in which an employer applied for a reduction of the amount of compensation which had been awarded to a workman on the basis of total incapacity, and it was held that the employer, who contended that the incapacity was no longer total, bore the onus of proving the case which he put forward: see Proctor & Sons v. Robinson [2] and Cardiff Corporation v. Hall [3] . These cases therefore are not authority for the wide statement made by Jordan C.J. Moreover, it is contrary to principle to say that a party who is opposing an award should bear the onus of establishing facts which would show that no award should be made, or that less than total compensation should be awarded. It is true that the right to compensation which is given to a worker by s. 7 of the Act is not cut down by ss. 9 and 11 which prescribe the amount of compensation payable (cf. McCann v. Scottish Co-operative Laundry Association Ltd. [4] ), and that a worker who establishes that he has received a personal injury arising out of or in the course of his employment, and that as a result he has sustained some incapacity for work, is in general entitled to receive at least some worker's compensation from his employer (Kandos Coomber Colliery Co. Ltd. v. Bromwich [1] ). However, a worker who has made out those facts may not be entitled at any particular time to payment of compensation, since his right may be dormant (Thompson v. Armstrong & Royse Pty. Ltd. [2] ), or suspended (Portland Colliery Co. Ltd. v. Murray [3] ). Clearly, the Workers' Compensation Commission may not make an award of an amount which exceeds the limits set by ss. 9 and 11. If it does not appear to the Commission that a particular weekly payment will not exceed those limits, the Commission must refrain from awarding that payment, and the worker who is contending that it should be awarded must fail. In effect therefore the Act imposes on the workman the burden of showing that the amount for which he contends may lawfully be awarded. On behalf of the respondent, it was submitted that s. 11 (1) (a) imposes a ceiling or limit on the amount of compensation that may be awarded under ss. 7 and 9, and that this affords a reason for holding that the onus of showing that this additional barrier would be broken by a particular award lies on the employer. I do not accept this submission. As was said in Commissioner for Railways (N.S.W.) v. Agalianos [4] :

s. 11 (1) (a) has two aspects. It sets a limit to the weekly payments on account of partial incapacity and it sets a standard in relation to which the weekly payments are to be fixed or assessed. The true position in my opinion is that both ss. 9 and 11 deal with the measurement of the right to compensation which s. 7 confers. If the material on which the Commission is entitled to act does not enable it to quantify the worker's right in accordance with those sections, the worker would be entitled to no more than a declaratory order. 1. [1911] 1 K.B., at p. 1008. 2. [1911] 1 K.B., at p. 1016. 3. [1936] 1 All E.R., at pp. 478-480. 4. (1948) 77 C.L.R. 371, at pp. 377-378. 5. (1950) 81 C.L.R., at p. 596. 6. [1923] A.C. 566, at p. 574. 7. (1955) 92 C.L.R. 390, at p. 397.

The view that the onus lies on the worker, and not on the employer, of establishing any facts necessary to show that the limits imposed by ss. 9 and 11 are not exceeded is supported by the remarks of Latham C.J. in Thompson v. Armstrong and Royse Pty. Ltd. [5] , although the Court was divided in that case, and his Honour's remarks cannot be regarded as representing the view of the whole Court. In Phillips v. The Commonwealth [6] , the Court held that an applicant for compensation under the Commonwealth Employees' Compensation Act 1930 Cth (as amended) bore the onus of proving the diminution of his earning capacity, and although the provisions of that statute are different in many respects from those of the Act, this decision is in accord with the opinion I have reached.

1. (1950) 81 C.L.R., at p. 598. 2. (1964) 110 C.L.R., at p. 351.

I have already said that I do not think that the question where this onus lies is of much importance in an ordinary case. This is because of the well-established rule that the Commission is entitled to make use of its judicial knowledge as to such matters as rates of wages and availability of employment (see Bryer v. Metropolitan Sewerage and Drainage Board [1] ; Kemp v. Darling Island Stevedoring and Lighterage Co. Ltd. [2] ; and Australian Iron & Steel Pty. Ltd. v. Elliott [3] ), and also because, in an appropriate case, a worker may rely on the provisions of s. 11 (2) of the Act which in effect provide that upon any failure by an employer to provide suitable employment for his injured worker during the worker's partial incapacity for work, the worker shall be compensated on the basis that his incapacity for work is total. In many cases therefore little evidence will be required to enable the Commission to determine the amount of compensation to which a worker is entitled under ss. 9 and 11 of the Act. To say this, however, does not mean that the burden is removed from the worker and cast on to the employer.

1. (1939) 39 S.R. (N.S.W.), at p. 330. 2. (1959) 76 W.N. (N.S.W.) 707. 3. (1966) 67 S.R. (N.S.W.) 87, at p. 94.

In a case arising under s. 6 (5) (a), where a contractor is deemed to be a worker, and both before and after the injury the claimant was not in receipt of wages but was conducting his own business, it seems to me that it will be most unlikely that the Commission will have judicial knowledge of the amount the claimant would probably have earned but for the injury, or of the amount he is earning after the injury. The Commission can use its general knowledge of the labour market, but it is not expected to have, or if it has it cannot use, particular knowledge of the facts of an individual case (cf. Reynolds v. Llanelly Associated Tinplate Co., Ltd. [4] ). In the present case the learned primary judge, in applying s. 11 (1) (a), had to find the difference between the amounts referred to in that provision. The word "earning" which is there twice used does not refer, in a case arising under s. 6 (5) (a), to the gross amount which would probably have been received, or is received, by the person who is deemed to be a worker, and out of which payments would have to be made for wages, materials and the provision of plant, but to the net amount, which represents the remuneration for the labour of the person deemed to be a worker. It was said in Jones v. International Anthracite Collieries Ltd. [1] , that in ascertaining "average weekly earnings" for the purpose of a provision that corresponded to s. 11 (1) (a) in its original form, "what one has to arrive at is what was the man really receiving for remuneration. In other words, what was the reward for his labour". In determining the difference between the two amounts mentioned in the present section, the one hypothetical and the other factual (Australian Iron & Steel Pty. Ltd. v. Elliott [2] ,) one is in my opinion concerned with the net remuneration of the person deemed to be a worker, and not with his gross takings. It is obvious that the Commission cannot have general knowledge as to the net amount which an individual contractor would probably have earned for his labour had it not been for his injury, or of the net amount he has actually earned since his injury, since so much depends upon the manner in which he conducts his business, his efficiency, the extent to which he employs workmen and uses plant, and the amount of overhead expenses he has to meet. Such matters must depend on the particular evidence in an individual case, and not on general knowledge.

1. [1948] 1 All E.R. 140. 2. (1918) 11 B.W.C.C. 274, at p. 283. 3. (1966) 67 S.R. (N.S.W.), at p. 93.

However, I have not been persuaded that there was no evidence upon which the award in the present case could have been sustained because not all of the material which was before the learned primary judge was placed before this Court. In particular, the respondent's day book, cash book and cheque butts were not reproduced or placed before us. The appeal was brought by motion and not by special case, and the evidence on which the Commission might have relied has not been identified. Although it may be doubted that there was sufficient evidence, the question was not fully explored in argument, and, as the evidence is not all before us, in my opinion the appeal should not succeed on this ground.

The second ground urged by the appellant was that in the circumstances of the case it was not possible for the learned primary judge to find the difference between the two amounts mentioned in s. 11 (1) (a) if he was unable to find the amounts themselves. I agree with this contention. No doubt there may be exceptional cases in which such a finding would be possible, e.g., where there is evidence that a worker suffering from the incapacity in question would earn at a weekly rate which is less by a given sum than the rate paid to an ordinary worker. The present, however, is not a case of that kind. It is true that the determination of the difference mentioned in the subsection involves matters of estimation and not merely a mathematical calculation. I am prepared to agree also that it is not necessary that the Commission should make a formal finding of the two amounts where to do so would be "an empty formality" (as Jordan C.J. said in Bryer v. Metropolitan Water Sewerage and Drainage Board, [1] ). It is however one thing to say that the Commission need not make formal findings of the two amounts; it is quite another to say that it can find the difference between the amounts if it cannot find the amounts themselves and there is no direct evidence to show what the difference is. As to the first amount - the hypothetical weekly earnings - the learned judge said no more than that he had considered trying to fix it. As to the second amount, the learned judge rejected a consideration of the actual post-injury earnings. In this, in my opinion, he was wrong. If the workman is in fact earning after the injury, the amount of his actual earnings cannot be disregarded; it may be shown that his actual earnings are not a true guide, either because he could have obtained better employment, or, perhaps, because they were inflated by the charity of some other benevolent employer, but as a general rule if a man is earning a particular sum it is impossible to say that he is able to earn only a lesser sum. Although the Commission is very much at large in determining the difference mentioned in s. 11 (1) (a), it is required to act judicially and not merely to guess at a figure. In the present case I consider that the learned judge could not have arrived at the amount of the difference for the purposes of s. 11 (1) (a) without first making up his mind as to the two amounts, and that his failure to do so amounted to error of law. Whether, if he had applied his mind properly to the questions raised by s. 11 (1) (a), there would have been evidence to enable him to make a determination does not appear, as I have already said. In the circumstances, therefore, it seems to me that although the appeal should be allowed the proper course would be to remit the matter to the Commission for further consideration.

I would allow the appeal, set aside the award made by the Commission for compensation from 2nd June 1967 and remit to the Commission for further consideration the question of the amount of compensation to be awarded on the basis of partial incapacity.