Supreme Court of the NT|1987-02-12|Before: Kearney J

John Holland Constructions Pty Ltd v Campbell Hall [1987] NTSC 3; 45 NTR 11 (12 February 1987)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Appeal - Workers' Compensation Court - amendment to statutory provision for appeal after claim heard but before decision given - nature of appeal from decision - distinction between question of law and question of fact - Workers' Compensation Act, s.26(1). Statute - Workers' Compensation Act - amending Act changing basis of amount of compensation - amendment coming into force after claim heard but before decision given - whether compensation for period of partial incapacity post-amendment to be as per amended provision - prima facie effect of amendment - whether relevant "fact" or "event" is passage of each week of incapacity after the amendment, or the incapacitating injury. Workers' compensation

partial incapacity - compensation under clause (1B)(b) of Schedule 2 of Workers' Compensation Act - amendment to Clause (1B)(b) after claim heard but before decision given - whether compensation for period post-amendment to be based on amended provision - whether worker's entitlement to compensation arises periodically or on occurrence of incapacitating injury. Statutes: Interpretation Act, s.12 Workers' Compensation Act, ss.7(1), 26(1); Schedule 2, Clause (1B)(b) Workmen's Compensation Amendment Act 1984, ss.17 and 20 Cases followed: Kraljevich v Lake View and Star Ltd ; Cases applied: Staska v General Motors-Holden Pty Ltd ; Farmer v Cotton Trustees ; Watts v Rake ; Cases referred to: Fisher v Hebburn ; Geraldton Building Co. Pty Ltd v May ; Whitley v Scobie ; HRNG DARWIN #DATE 12:2:1987 Counsel for the appellant: T.I. Pauling QC J.M.R. Neill Solicitors for the appellant: Ward Keller Counsel for the respondent: M. Ward Solicitors for the respondent: David de L. Winter ORDER Appeal dismussed. JUDGE1 On 10 February 1986 the appellant appealed against certain orders made by the Workers' Compensation Court on 2 December 1985. The Court had awarded the respondent lump sum compensation under s.10 of the Act together with weekly payments under s.7, for total incapacity from November 1981 to September 1983, and partial incapacity thereafter; and had directed that the liability for the weekly payments be redeemed by the payment of a lump sum.

disability and a consequent emotional reaction to the illness. Mr Shoulder stated that in his view the film refuted these claims of physical disability of anything remotely approaching the degree the he claims, and in addition supported his statement that there is no diagnosed or pshchiatric (sic) condition present. From Mr Shoulder's observations Mr Hall is a candidate for considering as being available to do a substantial degree of physical work. Dr Shoulder also agreed that Mr Hall should be fit for clerical work." (2) The findings 18. The learned magistrate found that the respondent had suffered injuries in May 1977, and in 1978 and 1979 in the course of his employment with the appellant. These injuries caused on-going intermittent lower back pain but the respondent was still able to work as a carpenter although the foreman had given him easier work to do. In November 1981 the respondent had suffered a further injury in the course of his employment with the applicant and had not worked since. 19. Her Worship considered that each back injury made the respondent more vulnerable to back injury; and that the injury of November 1981 was the most significant injury as regards his physical disability. In addition to the spondylolisthesis the respondent had probably suffered a permanent soft tissue injury. In his evidence Mr Dinning had described soft tissue injury as "a very non-specific term used by doctors to describe pain around the joint where there is no other clinical or X-ray evidence of damage to the joint or injury to a bone". 20. Her Worship considered that the real question was as to the consequences of these injuries in the light of the conflicting evidence which was then summarized:- "Dr Baddeley a Specialist Orthopaedic Surgeon gave evidence to the effect that Mr Hall did have an organic problem but that his major disability feature was a functional problem. A functional problem being a true involuntary problem of Psychiatric origin in which the patient truly feels pain but it is not of organic origin. Dr Dinning who is a Neuro Surgeon, Dr Gray who is an Orthopaedic Surgeon and Dr Shoulder who is a Specialist Psychiatrist all gave evidence to the effect that Mr Hall is fabricating his symptoms that he does have an organic problem but his behaviour pattern is consistent with a voluntary non organic situation and that he was telling lies." 21. Her Worship found that the respondent was consciously exaggerating his symptoms, and proceeded to consider the effect which this had upon his claim, bearing in mind the finding - clearly made as the later reasons of 2 December 1985 indicate - that the respondent had suffered a substantial injury to his back in November 1981 and had as a result organic disability resulting in incapacity. Her Worship clearly accepted the opinion of Mr Dinning that the respondent could do clerical work; of Mr Gray, that the physical injury produced a mild back disability; and of Mr Shoulder, that the respondent could do a substantial degree of physical work. 22. On the basis of these findings of fact, including the finding that the respondent was consciously exaggerating his symptoms, her Worship turned to consider the relief sought by the respondent. 23. As to the application for lump sum compensation under s.10 of the Act, for loss of legs in and for the purpose of his former employment, her Worship found that although the respondent was "consciously exaggerating his symptoms he had suffered a substantial injury" and had "an organic disability". Against the background of those findings her Worship found that the respondent "suffers a percentage disability in each leg equivalent to 75% incapacity to engage in his former employment". 24. As to the application for weekly payments under s.7 of the Act, her Worship found that the respondent was entitled to continuing weekly payments from the date his wages had ceased to be paid in February 1982. 25. As to the application for interest and punitive damages under s.6G, her Worship found that the respondent was entitled to interest on the weekly payments, but declined to make an order for punitive damages. 26. As to the application under Clause 12 of Schedule 2, that the liability for the weekly payments be redeemed by payment of a lump sum, her Worship considered it inappropriate "at this stage" to order redemption, because the respondent had been "consciously exaggerating his symptoms" and might "well be capable of doing a lot more than he himself has given evidence about". However, her Worship did not consider that the redemption application should be dismissed; this was because the appellant had not put to the respondent the films mentioned earlier, which contradicted the respondent's evidence as to his limitations and disabilities. Her Worship considered that this course of action by the appellant had denied the respondent the opportunity of dealing with any apparent discrepancies. Accordingly, her Worship contemplated adjourning the redemption application but gave counsel an opportunity to address on the matter. I note here that at an earlier point in the reasons, her Worship had noted that any application to re-call the respondent and Mr Baddeley to give evidence in the light of the film would have been granted; and that no application had been made. 27. Various matters involving calculation were left over for further submissions, which were made. On 2 December 1985 her Worship made certain orders which are set out in reasons for decision on that date. 28. An award of $35,595 was made in respect of the application under s.10 of the Act. 29. As to the application for weekly payments under s.7, her Worship found that the respondent was totally incapacitated from November 1981 until 8 September 1983; this finding is not challenged. From 8 September 1983, her Worship found, the respondent was partially incapacitated to an extent of 50%. In making these finding her Worship relied on the evidence of Messrs Dinning, Gray and Shoulder. 30. Interest on the unpaid weekly payments was directed to be paid at 6% over the period they were unpaid. 31. As to the redemption of weekly payments her Worship noted that since the decision of 29 October 1985 the respondent had indicated that he did not wish to call any further evidence and the parties were agreed that a decision on the question of redemption should now be made. Her Worship noted the change to Clause 1B(b) of Schedule 2 to the Act, which had come into force on 11 September 1985, that is, between the time final submissions were made in July 1985 and the handing down of reasons for decision on 29 October 1985. The question was whether the amended provision should apply. Her Worship considered that if the amended provision applied to the respondent, he would not be entitled to any weekly payments from 11 September 1985 and accordingly there would be nothing to redeem in that regard. Following argument her Worship ruled that the amendment of 11 September 1985 had prospective effect only and did not apply to the respondent, who had at that time vested rights. Her Worship concluded that the respondent was entitled under Clause 12 of Schedule 2 to redeem the weekly payments, his partial and permanent incapacity being 50%; the amount was tentatively calculated in the light of Clause (1B)(b) of Schedule 2 as it stood prior to 11 September 1985, at $110,418 plus an amount of $9,568 in respect of the respondent's child. The actual mathematics are not in dispute. THE ISSUES RAISED ON THE APPEAL (1) The effect of the amendment of 11 September 1985 on the calculation of the weekly payment 32. The appellant raised first the effect of s.20 of the Workmen's Compensation Amendment Act 1984 on the Court's decision as to the amount of compensation under Clause (1B)(b) of Schedule 2. Section 20 came into force on 11 September 1985. Her Worship considered and ruled on this question - see p 21 hereof; the appellant challenges her Worship's reasoning and conclusion. Sections 17 and 20 of that Act provide:- "17. APPEALS Section 26 of the Principal Act is amended by omitting sub-section (1) and substituting the following: '(1) Where the court makes a determination under this Act, a party to the proceeding may appeal against the determination on a question of law to the Supreme Court within the time and in the manner prescribed by the Rules of the Supreme Court. '(1A) Notwithstanding sub-section (1), where, in the opinion of the Supreme Court, evidence relevant to the appeal is available which was not considered by the court at the time of its determination, the Supreme Court may

admit that evidence at the appeal where it is satisfied that the party seeking the admission of the evidence did not know or could not reasonably have known of the existence of the evidence at the time of the determination by the court.". "20. SCHEDULE 2 Schedule 2 to the Principal Act is amended by omitting from clause (1B) "whichever is the greater" and substituting 'whichever is the lesser'." 33. Schedule 2 of the Workers' Compensation Act sets out the scale and conditions of compensation contemplated by s.7(1) of the Act which creates the obligation to pay compensation, viz:- "If personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, his employer shall, subject to this Act, be liable to pay in addition to any other compensation payable under this Act, compensation in accordance with Schedule 2." (underlining mine). 34. The appellant contends that the effect of s.7(1) is that an injured worker is entitled to be paid compensation in accordance with Schedule 2 as it stands from time to time; that is to say, when Schedule 2 is amended, the compensation payable for the weeks of incapacity post-amendment is calculated on the basis of the amended Schedule 2. 35. Prior to the amendment of 11 September 1985 Clause (1B)(b) of Schedule 2 provided:- "(1B) Where the workman is partially incapacitated for work by the injury, the amount of compensation is - ... (b) in respect of a period, being a period after the expiration of the 26 weeks referred to in sub-paragraph (a) - (i) the amount, if any, per week by which the weekly amount that he is earning, or is able to earn in some suitable employment or business is less that the amount per week that would be payable to him under paragraph (1A)(b)(i) if he had been totally incapacitated; or (ii) the amount, if any, per week by which the weekly amount that he is earning, or is able to earn in some suitable employment or business, is less than the workman's normal weekly earnings, whichever is the greater but so that the amount payable does not exceed the proportion of the amount that would have been payable to the workman under paragraph (1A)(b)(i) had he been totally incapacitated for work that his loss of capacity to work bears to what would have been his full capacity to work had he not been injured." (underlining mine). The effect of s.20 of the amending Act was to delete the word "greater" and substitute "lesser" as from 11 September 1985. 36. The question then is whether the amended Clause (1B)(b) applies to the calculation of any amount of weekly compensation payable after 11 September 1985 even though the respondent's incapacitating injury occurred before that date, when the amendment came into force. There is nothing in s.23 of the amending Act, a transitional and savings provision, which indicates that s.20 of the amending Act is to apply retrospectively. The appellant submits that the amendment constitutes the law and applies on and from 11 September 1985 to the calculation of compensation; and that the date of the injury is irrelevant. It is common ground that if this be so, the respondent is not entitled to any amount by way of weekly payments under Clause (1B)(b) from 11 September 1985 to date; and in that event he currently recovers nothing by way of a lump sum in redemption of the liability to make such weekly payments after 11 September 1985. It is also common ground that for the period up to 11 September 1985 the amount of compensation to which the respondent is entitled under s.7(1) is determined by applying Clause (1B)(b) as it stood prior to the amendment of 11 September 1985; see s.12 of the Interpretation Act, and especially paras (a) and (b). 37. The appellant's argument proceeded as follows. The right to compensation calculated under Clause (1B)(b) arises from partial incapacity for work due to personal injury by accident in the course of employment. That compensation takes the form of a weekly payment which is due and payable in arrears and can be recovered in advance only if the liability to make the payment is redeemed by payment of a lump sum following application under Clauses 12-12B of Schedule 2. The submission in essence is that the right to a weekly payment arises periodically, that is, by the passage of each week during which the worker suffers partial incapacity. 38. The learned magistrate appeared to approach the application of the amendment on the basis that the answer turned on whether it applied prospectively or retrospectively; the appellant contends that this approach was erroneous. 39. I accept the appellant's submission that in general the effect of an amending enactment is as expressed by Fullagar J. in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194; it is prima facie to be construed as having a prospective operation only, in the sense that - "... it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement" (underlining mine). 40. This approach was approved by the Privy Council in Staska v General Motors-Holdens Pty Ltd [1972] UKPCHCA 1; (1972) 123 CLR 673. Their Lordships observed at p 675 that the prima facie presumption - "... is sometimes spoken of as a presumption against

retrospective operation of a statute, but this use of the word 'retrospective', though it may be convenient as a label, is not accurate as a description of an enactment which interferes only with the future existence or operation of a previously acquired right or a previously incurred liability. A truly retrospective enactment would be one ... making lawful a past action which was unlawful when committed, or one making unlawful a past action which was lawful when committed ..." The appellant's submission focussed upon the words of Fullagar J. underlined above. The submission was that in this case the "fact" or "event" which gives rise to a weekly payment under Clause (1B)(b) is the passage of the week during which the incapacity is suffered; and that since the passage of each week after 11 September 1985 in which the respondent suffered incapacity was not a "fact" or "event" which occurred before the commencement on that day of the amending Act, to apply the amended Clause (1B)(b) to the calculation of the amount of compensation for any such weeks of incapacity after 11 September 1985, is to construe and apply the amending Act prospectively. In other words, to adopt the words of Fullagar J. at p 194 of Fisher's case(supra), the amendment effected by s.20 of the amending Act, applied in this way - "... may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury". 41. In Fisher's case (supra) the Supreme Court of New South Wales had held that an amending Act did not apply to the appellant because the injury which ultimately gave rise to an incapacity made compensable only by that Act had to be regarded as having occurred some 2 years before the Act came into force, and the Act did not apply in respect of injuries received before it came into force. There was nothing in the Act to suggest that it had a retrospective operation. The incapacity had occurred after the Act came into force. Fullagar J. considered, however, that on its proper construction the Act applied to all cases in which incapacity occurred after the Act commenced, irrespective of whether the injury occurred before or after the commencement; the whole subject-matter of the Act was incapacity, and while it was limited to incapacities arising after the commencement date it was not limited to injuries arising after that date. 42. In Fisher's case (supra) Kitto and Menzies JJ., with whom McTiernan J. agreed, appeared to accept the same general approach to construction as had Fullagar J., expressing their view as follows, at p 202:- "... the general rule of common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events." I respectfully agree. Their Honours then considered at pp 202-3 the point of time at which there accrued a right to receive compensation in accordance with the Act. In the case of diseases not of gradual onset (which is the position as regards the injury of November 1981) that point of time was the date of receipt of the injury - "... the reason being that immediately upon the happening of that event the worker's employer comes under a statutory liability to pay compensation in accordance with the Act ... It is nothing to the point that the liability thus arising does not entail any payment unless and until incapacity ... supervenes; the liability exists nonetheless." (underlining mine). 43. Fisher's case, however, involved a disease of gradual onset, pneumoconiosis, and accordingly the injury did not give rise to liability, which arose only when incapacity resulted - in that case, after the commencement of the Act. 44. In Kraljevich v Lake View and Star Ltd [1945] HCA 29; (1945) 70 CLR 647 there was provision in a schedule similar to Schedule 2 for redemption of the liability for weekly payments and for the assessment of the resulting lump sum. An amending Act altered the method of assessment, the effect being an increase in the redemption lump sum. It was held that the amendment did not apply to a case in which the accident in respect of which weekly payments were being made had occurred before the date of the amendment, and an application for redemption (made before the amendment) was heard after it commenced. The unsuccessful (worker) appellant had argued that the amending Act related only to a matter of procedure, the way in which quantum was to be assessed, and therefore applied to proceedings which were pending when it came into force. The respondent had argued that the worker's primary right was to apply for compensation and the amending Act could not affect rights already vested, the respondent's liability having been incurred at the time of the accident and defined by the Act as it then stood. 45. Latham C.J. said at p 650:- "... in the present case, the right is a right to obtain an order for a sum of money calculated in a particular way, not merely a right to redemption in abstracto. The right of the worker who suffers from an accident for which compensation is payable under a Workers' Compensation Act accrues immediately on the happening of the injury (Stevens v Railway Commissioners for New South Wales) (1931) 315 SR (N.S.W.) 138. See also Clement v D. Davis and Sons Ltd) (1927) AC 126. The new Act applies only to accident happening after the Act came into operation and the former provisions continue to apply to rights and liabilities in respect of accidents happening before that time (Moakes v Blackwell Colliery Co. Ltd.) (1925) 2 KB 64. These authorities show that the alteration of the rights and liabilities of persons made by the amending Act must be regarded as relating only to the future, and that the rights of the worker and the liabilities of the employer are preserved as they were before the amending Act was passed." 46. Dixon J. (as he then was) said at pp 652-3:- "...when the alteration in the law relates to the mode in which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce. In the present case, we have an example of a provision which at first sight looks to be expressed in terms more appropriate to procedure, but

one, in substance, measuring liability. For to prescribe the basis of calculating redemption is in reality to express the measure of liability. But, when the statute is examined in detail, the form also of the amended clause is seen less as a statement about proceedings for the realization of rights than as a delimitation of their measure. For s.6(1) of the principal Act provides that upon personal injury being caused in conditions involving liability the worker's employer shall be liable to pay compensation in accordance with the First Schedule'. The existing First Schedule, therefore, states the extent and limits of the liability and how to ascertain it. In In re Hale's Patent, (1920) 2 Ch 377 at pp 386-7 Sargent J. refers to the special case, midway between procedure and substantive law, when an alteration in the law is made dealing with rights and procedure together and he treats it as fairly clear that it is within the operation of the presumption against an application of the new law to existing cases." The parallels with the present case are clear enough. 47. The appellant also referred to Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379. In that case the accident and injury (permanent loss of partial vision in an eye) occurred in 1971. In 1974 the worker elected to be paid compensation in accordance with a scheduled table providing for lump sum compensation for loss of parts or functions of the body. Between 1971 and 1974 the table had been amended so as to increase the amount of compensation payable. It was held, by majority (Gibbs, Stephen and Murphy JJ.), that the amount of compensation should be determined according to the provisions of the Act as it stood at the date of the worker's election. The decision turned on the construction of the statutory provision giving the worker the right to elect to take the schedule lump sum; the relevant words were "where the worker so elects". The majority appeared to construe the word "where" as meaning "if", so that a right to a lump sum accrued only at the time the worker made his election; the minority construed "where" as meaning "when", a construction which involved the view that the right to a lump sum accrued at the time of the accident. 48. Gibbs J. (as he then was) said at p 398:- "The question is entirely one of statutory construction ... if I may adopt a phrase from the judgment of Fullagar J. in Fisher v Hebburn Ltd the Amendment Act of 1973 applied prospectively, although its prospect began with the election and not with the injury". 49. Stephen J. said at pp 399-400:- "... in the absence of clear indications to the contrary, amending enactments are to be taken to have a prospective operation only (Fisher v Hebburn Ltd per Fullagar J. [1960] HCA 80; (1960) 105 CLR 188, at p 194)) so as not 'to upset vested rights and liabilities which are complete in themselves' (Clement v D. Davis and SonsLtd, per Viscount Dunedin (1927) AC 126 at p 131). As Dixon C.J. expressed it in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at p 268) there is a 'presumption against the operation of new laws upon rights that have already accrued or immunities that have already been established or acquired'; this may, no doubt, be extended beyond accrued rights and immunities to include accrued liabilities as was done in Fisher v Hebburn Ltd, per Kitto and Menzies JJ. (1960) 105 CLR, at p 202. In Maxwell v Murphy the Chief Justice explained the need for accommodation of this principle with the way in which the law treats the repeal of a statute and in doing so cited what was said by Blackburn J. in Butcher v Henderson (1886) LR 3 QB 335, at p 338: that repeal operates as to new matters as if the repealed provision never existed 'yet as to transactions already completed under it it still has full effect'." 50. Again, at p 401 Stephen J. said:- "I have concluded that it is not until the making of an election ... that there is any such accrual of a right or such an incurring of a liability as will attract the doctrine in favour of the prospective operation of statutes. Until an election was made there were no 'transactions already completed' under the provisions of the former s.7(3)(a), repealed by the 1973 amendments, which affected May and to which those repealed provisions might apply. May's election was wanting and until that occurred no right or liability relevantly accrued." It can be seen that the case turned upon the meaning of certain words in the statute. 51. In Whitley v Scobie [1985] FCA 417; (1985) 63 ALR 221, a case arising in this jurisdiction, the worker had been injured in 1973 and received compensation. At that time certain additional compensation was payable under s.12(1) at a fixed rate; he received this compensation. A new s.12(1) was inserted in 1978 under which the Tribunal could determine a reasonable rate. The worker claimed under the new s.12(1). The Full Court of the Federal Court, following Geraldton Building Co Pty Ltd v May (supra), held that the new s.12(1) was to be given a prospective operation; that is, it did not upset vested rights and liabilities which were complete in themselves. Compensation under the new s.12(1) was expressed to be payable where the workman "on (medical) advice" required help, so the time of the injury was immaterial to such payment, the determining factor being medical advice, which could be given from time to time. As the relevant medical advice to the worker was in fact given after 1978 the new s.12(1), construed as having only prospective effect, applied to him. It can be seen that the decision turned upon the construction of certain words in the new s.12(1). 52. At p 227 Northrop J. commented:- "The principle to be applied in determining issues of this kind is not really in doubt. The difficulties arise in applying that principle." I respectfully agree. 53. In Staska's case (supra) the worker, injured in South Australia in 1956, became permanently and totally incapacitated as a result in 1967. The relevant Act had been amended in 1965 and 1966 to increase the amounts of weekly compensation payable. In 1968 the employer applied to redeem the weekly amount payable to the worker, by payment of a lump sum. The question was whether the amount of the lump sum was subject to the limit imposed by the Act as it stood in 1956, the date of the injury, or to the higher limit in the Act as it stood in 1968 following the amendments. The Privy Council held that the limit as it stood in 1956 applied. 54. Their Lordships, having noted at p 675 the - "... prima facie presumption that an enactment is not intended to affect rights which have already been acquired or liabilities which have already been incurred before the enactment has come into operation", made the observation cited at pp 222-23 hereof concerning the inaccurate use of the word "retrospective" when what is in issue is the effect of an enactment which interferes only with the future existence or operation of a previously acquired right or a previously incurred liability. I consider that insofar as the learned magistrate in this case considered that unless the amendment of 11 September 1985 had retrospective effect it could not apply to the respondent, such an analysis is erroneous or prone to mislead. 55. Their Lordships considered the history of the Act in South Australia, and the various savings clauses which had been incorporated in the amendments made from time to time, and concluded at p 680 that - "Up to this point of time the basic assumption, in

agreement with the presumption referred to above, was that the rates and amounts of compensation provided by the legislation in force at the time of the accident would continue to apply to the consequences of the accident unless later legislation otherwise provided." Their Lordships then considered the amending Act of 1965 providing for increased compensation and said (at p 680) -

"Bearing in mind the presumption which has been mentioned, the previous statutory history and the complex situation existing immediately before the Act of 1965, one would not expect these changes to apply to compensation for past accidents. That would have been a revolutionary innovation requiring express words or very clear implication to bring it about." 56. Their Lordships in effect found that "revolutionary innovation" in the amending Act of 1966, which extensively modified the previous system and provided that the weekly payment for incapacity was thereafter to be the weekly rates in force from time to time, irrespective of when the injury had occurred. However, their Lordships considered that upon the proper construction of the 1966 amendment the limit on the lump sum payable remained unaffected by the new approach to weekly payments. In effect, the prima facie presumption described by Fullagar J. in Fisher's case (supra) was applied. 57. Having considered these authorities, I am of opinion that the learned magistrate was correct in concluding that the amendment does not apply to the calculation of any compensation due to the respondent in terms of Clause (1B)(b), in respect of the period after the amendment came into force on 11 September 1985. The appellant's liability under s.7(1) to pay compensation to the respondent "in accordance with Schedule 2" crystallized when the respondent was incapacitated by injury, an "event" which occurred in 1981; that is, prior to the amending Act of 1985. The incapacitating injury of 1981 and not the passage of each week of incapacity was the "fact" or "event" to which legal consequences under the Act attached; and they attached at the time of that injury. Section 7 and Schedule 2 as it stood in 1981 defined those legal consequences by spelling out the rights and liabilities of the parties which then accrued; the consequences included the calculation, under Clause (1B)(b) as it then stood, of future weekly compensation payments. The respondent's right, which vested in 1981, was the right to obtain compensation calculated in the manner provided by Schedule 2 as it then stood. The respondent's application under Clause 12 of Schedule 2 to redeem the liability for weekly payments was made in December 1984, prior to the amending Act, though to my mind the respondent's rights under Clause 12, which was not amended by the amending Act, were not affected by that Act. I consider that the observation by Dixon J. (as he then was) in the extract from his judgment in Kraljevich's case set out on pp 27-8 hereof that "to prescribe the basis of calculating redemption is in reality to express the measure of liability", applies mutatis mutandis to indicate the approach which should be adopted. 58. To my mind the decision on this issue in the appeal is determined by Kraljevich's case (supra), as the learned magistrate held; s.12(c) of the Interpretation Act applies, and yields the same result, there being no intention to the contrary in the amending Act. I consider that the amended Clause (1B)(b) applies only to accidents happening after 11 September 1985; what is in its "prospect", in the words of Fullagar J. cited at p 32 hereof, is an injury on or after that date which causes partial incapacity. Accordingly, I reject the appellant's submission on this issue. (2) The nature of the appeal 59. Until the amending Act came into force on 11 September 1985, s.26(1) of the principal Act provided for an appeal by way of rehearing against a determination on a question of law or fact or both. The new s.26(1), introduced by the amending Act and set out on p 18 hereof, provided that only "a question of law" might be raised on appeal. The Compensation Court's decision was given after 11 September 1985; in my opinion the new s.26(1) regulates the right of appeal from that decision. 60. What amounts to "a question of law", and the distinction between questions of law and questions of fact, are matters of very considerable difficulty; the subject is discussed at pp 183-192 of Hill and Bingeman "Principles of Worker's Compensation" (1981). The dictum of Lord Parker in Farmer v Cotton Trustees [1915] UKHL TC_6_590; (1915) AC 922 at 932 provides a guide:- "... where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only." I consider that the following propositions are clear. The question whether evidence of a fact should be accepted, or accepted as sufficient to establish the fact, is in general itself a question of fact. Where an inference from primary findings is required before it can be decided whether a particular proposition can be inferred, it is a question of law whether it is reasonably possible to draw that inference from the primary findings. The question whether there is any evidence to support a finding of fact is always a question of law. In this jurisdiction the Worker's Compensation Court is the sole decision-maker as to questions of fact; and the function of this court, on appeal, is to decide whether or not the conclusions reached by the Court were open to it on the evidence placed before it. (3) The award under s.10 of the Act 61. The Court awarded the respondent lump sum compensation of $35,595 under s.10(5) of the Act, having found a permanent loss of 75% of the efficient use of both of his legs for the purposes of his employment as it was in November 1981. 62. The appellant contends that there was no evidence to support the finding in respect of which that award was made; and that the respondent bore the onus of proving the disability but had not adduced evidence capable of raising a prima facie case to support the award. 63. It is clear that the respondent bore the burden of establishing the loss of use of his legs for the purpose of his employment. As Dixon C.J. observed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 159 - "... states of fact may be proved by the evidence as the case advances or may appear as inferences which the evidence supports and those states of fact may authorize or even demand findings in favour of a party unless and until some further or other state of fact is made to appear by evidence." 64. The appellant contends that the only evidentiary basis for the finding of a 75% loss of function in the respondent's legs was a medical report of 20 January 1982 (Exhibit 6) by Dr Moss. This report related to Dr Moss' examination of the respondent on 20 July 1981; at that time Dr Moss found no functional factor involved and estimated a 30% disability due to organic inability by the respondent to use his back "which would be equivalent under Northern Territory Maim Law to 75% loss of function of one lower limb." The appellant contends that while Dr Moss had accepted the history given by the respondent when estimating his disability, the Court did not accept that evidence, having found that the respondent was exaggerating; accordingly the submission is that the Court could not, consistently, accept Dr Moss' estimation of disability. In any event, the appellant noted that Dr Moss had referred to 75% loss of function of one lower limb, not both. 65. I note that at no place in her extensive reasons for decision did her Worship place any reliance upon the report of Dr Moss, who was not called to give evidence. Dr Moss' report related to his examination of the respondent in July 1981 when he was still working and it is clear that the Court found the disabling injury was the injury of November 1981. It was the consequences of that injury with which the Court was concerned in considering the application under s.10, having found (at p 24) that it was "the most significant incident in Mr Hall's physical disability". 66. It appears to me therefore that, as far as Dr Moss' report is concerned, there is nothing to indicate that her Worship placed reliance on it, and the reference to "75%" is merely coincidental. Her Worship expressly "based" herself on the views of Messrs Dinning, Gray and Shoulder when considering the application under s.10; see p 27 of the reasons of 29 October 1985. 67. The evidence before the Court on the question of the loss by the respondent of the partial and permanent use of his legs in and for the purposes of his employment, taken at its highest, in usefully set out in the final submission of his counsel of 24 May 1985. It is sufficient, if accepted, to warrant the assessment the magistrate made under s.10. Her Worship found "a substantial injury" and "an organic disability" and bore in mind "the conscious exaggeration of his symptoms". It is no part of the function of this Court to substitute its judgment for that of the magistrate. In my opinion there was evidence to warrant the magistrate's decision on the s.10 application, and the attack on that decision must fail. (4) The question of redemption 68. Her Worship was expressly requested to proceed to decide the question of redemption, and did so, following submissions by counsel. No attack was made on the finding that the respondent was totally incapacitated from November 1981 until September 1983. Although the magistrate does not set out the process of evaluation of the evidence which led to the conclusion that the partial incapacity thereafter was 50%, the making of that assessment was peculiarly a matter for her Worship to decide. 69. It could not be said, I think, that the evidence was not there to warrant the finding. Her Worship clearly had in mind the medical evidence and the respondent's "conscious exaggeration" of his symptoms. What was involved was an exercise in judgment. In my opinion it was open to her Worship to find a partial disability of 50%. It cannot be said to be a mere speculation. Her Worship then proceeded to allow a lump sum redemption. Again it appears to me that it was open to her Worship to make that order. (5) The rate of interest 70. It is sufficient to state that, in the absence of evidence as to commercial rates of interest during the period in question, her Worship was correct in calculating interest at 6% on the amount due over the full period. This is the accepted rough-and-ready calculation of the effect of a real interest rate of 12% on sums gradually accruing over the full period. In the end, I understand, this point was not contested. 71. I should add I consider it was open to the magistrate to make an order for interest under s.6G of the Act. It is clear, I think, that the issues involved in s.6G were canvassed before her Worship, and she expressed her conclusion thereon at p 28 of the reasons of 29 October 1985. (6) The question of Browne v Dunn (1894) 6 R.67 72. The conduct of the case by the appellant before the magistrate, in failing to put to the respondent and Mr Baddeley the contents of the films, was a course bound to give rise to difficulty. The respondent complains that this vitiates the finding on partial incapacity, and there should have been a finding of total and permanent incapacity. Looking at the matter as a whole, I consider that the magistrate took the optimum course. The respondent and Mr Baddeley could have been re-called, and the film put to them, before a decision was made. This course of action was not adopted. In all the circumstances, I do not consider that the finding of partial incapacity is open to attack on this ground. 73. In my opinion the appeal must fail. The decision of the Workers' Compensation Court is affirmed and the respondent should have his costs.

Workmen's Compensation Amendment Act 1984

John Holland Constructions Pty Ltd v Campbell Hall [1987] NTSC 3; 45 NTR 11

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

John Holland Constructions Pty Ltd v Campbell Hall [1987] NTSC 3; 45 NTR 11 (12 February 1987)

Parties

Legislation Cited (2)

Cases Cited (10)