office to collect mail. Subject to the question of serious
and wilful misconduct and s7(3) of the Act, the respondent
was
entitled to compensation."
15. The second answer to the respondent's contention is that we do not
consider that the High Court intended,
by its references to "gross misconduct
taking him or her outside the course of employment," to be laying down a
universal proposition
of law that whenever gross misconduct occurs during an
interval between episodes of work, the employee must be outside the course
of
the employment. No doubt that will often be the case, but s7(3) of the Act
makes it clear that an employee is not taken outside
the course of his
employment by his own serious and wilful misconduct if he suffers permanent
and serious injury. As Lord MacMillan
observed in Harris v Associated Portland
Cement Manufacturers Ltd (1939) AC 71 at 83-4:
"My Lords, throughout the whole course of the legislation
dealing with workmen's compensation from 1897 down to the
present day the cardinal condition of a valid claim of
compensation was been that the accident causing personal
injury to
the workman shall have arisen out of and in the
course of his employment. Amending legislation has affected
this cardinal condition
in a not very logical fashion by
providing that, if the accident results in death or serious
and permanent disablement then,
in certain cases,
notwithstanding that certain facts are proved which might be
thought to establish that the accident did not
arise out of
and in the course of the employment, the employer is to be
precluded from so maintaining by reason of these facts
alone. If the injury to the workman is proved to have been
attributable to his serious and wilful misconduct
compensation
is not to be disallowed by reason of this fact
if the injury results in death or serious and permanent
disablement - which
is tantamount to saying that although
the accident is attributable to the workman's serious and
wilful misconduct it may nevertheless
be held to arise out
of and in the course of his employment. In such a case,
although the employer cannot in answer to the
claim plead
that the accident was due to the serious and wilful
misconduct of the workman, he may still plead that for other
reasons it did not arise out of and in the course of the
employment. Further, but again only if the accident results
in
death or serious and permanent disablement, the employer
is precluded from pleading that the accident did not arise
out of
and in the course of the employment because at the
time of the accident the workman was (a) acting in
contravention of a statutory
or other regulation applicable
to his employment or of orders given by or on behalf of his
employer or (b) acting without instructions
from his
employer, provided in both cases that such act was done by
the workman for the purposes of and in connection with
his
employer's trade or business. Subject to these
qualifications and restrictions the plea that the accident
did not arise
out of and in the course of the employment
remains available to the employer."
16. These observations are clearly applicable
to the provisions of
subss7(1),(3) and (4) of the Workmen's Compensation Act. In interval cases,
the ultimate question is still whether
the injury arose by accident out of or
in the course of the employment within the meaning of s7(1). We do not
understand the High
Court to be in any way suggesting otherwise, or that
subs7(3) and (4) have no application to such a case. We consider that all
their
Honours intended by their references to gross misconduct was to draw
attention to the general rule, rather than the exception. It
is the words of
the Act which must rule in every case, and judicial pronouncements are not to
be construed in the same way as an
Act of Parliament, particularly when it is
plain that general guidance is being offered, and the court has not
specifically averted
to the relevant statutory provisions in question. It was
suggested that there is a difference between gross misconduct and serious
and
wilful misconduct, but we are unable to see any difference between the two
concepts. In any event the only relevant finding by
the learned magistrate was
that the misconduct was serious and wilful; not that it was also "gross." If
there is a difference between
the two concepts, there is simply no finding
that the misconduct was gross. But, as we have already said, we do not
consider that
there is any difference between the two ideas. Accordingly we do
not accept the proposition that an employee is precluded by his
misconduct
from resuming his employment.
17. In our opinion it has not been shown that the decision of the learned
magistrate or
of the Supreme Court was in error in holding that the
respondent's injury arose in the course of his employment. It follows that
the
appellant's submission that this was, in truth, a journey case which fell
outside the provisions of s8 because of the provisions
of s8(2) must fail. In
our opinion this was not a journey case at all. The respondent was not
travelling "to his employment"; the
facts support the conclusion that the
journey was the employment, or at least something that was part of or
incidental to his duties
as a whole, at the relevant time. In those
circumstances the conclusion that the injury arose in the course of his
employment cannot
be interfered with.
QUANTUM
18. The Claim
The amount of an employer's liability to a worker under the Act is fixed by
reference
to the Act. Relevantly to this matter, where the worker is totally
or partially incapacitated for work by the injury there is payable
to the
worker weekly payments for a term of weeks calculated in accordance with
formulae set out in Schedule 2 (s7(1)). Where the
worker sustains an injury
which causes loss or partial and permanent loss of the efficient use of a part
of the body specified in
the Third Schedule in and for the purposes of his
employment at the date of the injury, there is payable an amount of
compensation
also to be calculated in accordance with the provisions of the
Act, namely s10 and that schedule. Schedule 2 cl(12) provides that
where in
the case of total and permanent incapacity or partial and permanent
incapacity, a worker is receiving or entitled to receive
a weekly payment,
that person may apply to redeem the liability for that weekly payment by the
payment of a lump sum. There is no
formula relating to the calculation of that
lump sum. There was evidence before the Workers' Compensation Court directed
to the respondent's
claim for weekly payments under s7 and for additional
compensation under s10. Application was also made to redeem the liability for
weekly payments.
THE EVIDENCE
19. The respondent's evidence before the Workers' Compensation Court was that
immediately after the
accident he suffered pain in his left arm, hip and left
leg. His major injuries comprised two fractures of the left forearm and damage
to the bones in the left hip joint which caused consequential pain to the left
knee and right hip. According to him, it took about
three months to get on his
feet with gradual increase in weight bearing, particularly on his left leg. In
March 1988, he underwent
further surgery for the removal of pins inserted as
part of the treatment of the damaged bones. In mid 1988, he came under the
supervision
of the Commonwealth Rehabilitation Service which continued for
about 12 months. He undertook a work assessment programme and obtained
work
experience for a period of three months with a motor vehicle auctioneer's firm
from mid 1989. He was not paid by the firm, but
received continuing social
security benefits. His evidence was that thereafter he tried to obtain
employment with motor vehicle auction
firms, as a plant operator and a truck
driver, and in other fields, but was unsuccessful. He had continued to suffer
from pain arising
from the injuries. At the time of the hearing before the
Workers' Compensation Court he complained that his left arm lacked strength
and was painful if it was struck, and that he had difficulty walking and
sitting for any length of time because of pain and discomfort
in his left hip,
left leg and knee. His left leg had shortened compared with his right, and
there was muscle wasting of it.
20.
During the course of his evidence, the respondent told of his varied
pre-accident work experience including as a storeman, a spare
parts salesman
and the variety of tasks which comprised his work for the appellant.
Cross-examined, he agreed that Mr Baddley, an
orthopaedic surgeon, had advised
him that he could return to work as a truck driver provided there was no part
of his duties involving
loading or unloading and that he accepted what the
doctor had told him, although he had not gone out and applied for such a job.
He had also received advice from a Doctor Hay in 1989 that he should be able
to return to work. As to the job with the car auctioneers,
he described the
nature of the duties as clerical, estimation of values of motor cars, driving
vehicles and arranging them on the
auction room floor. He said he was happy in
the job and able to cope in it, but when the three month's work experience
period expired
he was unable to obtain employment in that field being told
there were no vacancies. He applied for other positions as a car salesman
and
for lubricating work, but always with the same result. He agreed that he
could do any job that avoided lengthy sitting, standing
or walking, provided,
of course, it was within his mental capacity. Although he had from time to
time undertaken work which might
be broadly termed as clerical duties, the
employment service had recommended that he undertake an educational course
which might
benefit him for that type of work. He had looked at newspaper job
advertisements but had not applied for any during a period of 12
months prior
to the hearing. He had thought of taxi driving, but considered that continuous
sitting would prove a problem. He considered
that part of his difficulty in
obtaining jobs related to prospective employers' reluctance to employ him:
"they want a hundred percent
these days".
21. Mr Griffiths, a specialist in orthopaedics and, amongst his many
qualifications, a Fellow of the Australian College
of Rehabilitation Medicine,
gave evidence for the respondent. A number of objections were raised to the
doctor's answering questions
relating to his opinion of the extent of the
respondent's disabilities in relation to work. The questions were allowed, and
those
rulings were not a ground of appeal to the Supreme Court. Mr Griffiths
told of his having treated patients who had followed the occupation
of a
labourer, a plant operator and a worker on construction projects. He
understood that the respondent was a plant operator involved
in a lot of
driving of machinery and had experience in other forms of work in outback
areas, but had very little by way of qualifications
or experience in any form
of sedentary occupation. He was asked as to his assessment of the percentage
disability of the respondent's
left arm for the purposes of his employment as
a plant operator. Disclosing his reasoning towards the result with reference
to the
nature of the injuries and their then condition, he said: "I believe he
would have a maximum of, say, 10 per cent of loss of efficiency
of the left
upper limb as a result of fractures of both forearm bones although they have
now healed into position." Dealing with
the respondent's left leg for the
purposes of his being employed as a plant operator, the doctor opined that the
leg was one hundred
percent disabled. As to the percentage disability caused
by the referred pain in his right hip and groin for the purposes of his
employment as a plant operator, he did not believe it would be great: "No more
than perhaps 5 per cent."
22. It was Mr Griffiths'
opinion that the respondent should undergo a
procedure involving replacement of part of the damaged left hip. It would be
aimed at
alleviating the pain which was preventing him from using his left leg
normally. If the respondent consented and cooperated there
was no reason why
it should not be carried out without delay. Given the respondent's age, and
the state of knowledge at the time
the doctor gave his evidence, he thought
the replacement would need renewal every 7 years or so. If the procedure was
undertaken
the respondent would have surprisingly little in the way of pain
and would have very good movement range, but he would nevertheless
have a
potential disability given that the hip would eventually give further trouble
especially should it get vigorous usage. Mr
Griffiths did not believe that at
the time of the hearing the respondent was employable in anything that
required any standing or
prolonged sitting. He would find driving difficult,
he had little agility and could not run nor climb ladders or stairs
frequently.
Given occupational training he may be employable in a sedentary
capacity. He did not think that the respondent was then capable of
being a
taxi driver, though perhaps he could do so after the proposed surgery. Even
after that operation, he thought it would be
unadvisable for the respondent to
take employment as a storeman if he was to be on his feet for long periods
load bearing. In summary,
the doctor's opinion was that the respondent was not
fit for any form of occupation at the time he gave his evidence, but after the
hip replacement he could do work in a very modified capacity of a sedentary
nature. He would still have to avoid any activities that
would place any
stress on the hip replacement. The hip replacement would also have a
beneficial effect upon the difficulties in the
right leg. In
cross-examination, Mr Griffiths said that, speaking generally, any occupation
involving long periods of standing, load
bearing on the hip and repetitive
bending and lifting effort were ill advised, even after the operation. He
thought that a job as
a clerk would be ideal for the respondent, although he
might find difficulty in sitting because of the pain in the hip.
23. With
some reservations as to the amount of standing that might be
involved, the doctor was sure that the respondent could sell motor vehicles.
It could take three months or more after the proposed operation before he
could take up a suitable type of occupation and could continue
until such time
as the replacement failed or caused problems requiring revision. He confirmed,
from a medical point of view, that
it was better that the respondent undertake
the procedure sooner rather than later otherwise his condition might
deteriorate further.
The doctor agreed in cross-examination that he had not
obtained details from the respondent as to the daily functions of the work
upon which he was employed at the time of the accident. When it was put to him
that what he had done was to assess the respondent's
physical disablement
unrelated to his employment he replied: "Unless his employment is totally
sedentary, office type, perhaps even
a member of the medical or legal
profession, I think the hip would cause him considerable distress in any other
form of occupation."
In re-examination the doctor confirmed that with
reference to the respondent's capacity for work, a job in a car auction yard
involving
clerical duties and moving motor vehicles around within a limited
area would be a suitable occupation, but that he would do that
type of job far
better if he had a new hip.
24. Mr Smith was employed as a senior employment officer in the Commonwealth
Employment
Service with particular reference to disadvantaged job seekers,
including persons physically disabled by industrial and motor vehicle
accidents. He dealt with disabled job seekers as well as potential employers
of disabled people. The respondent was registered with
the service during 1988
and until March 1990. Mr Smith confirmed that the respondent had been referred
to the Commonwealth Rehabilitation
Service and he had a report in relation to
the respondent received from that service as well as the respondent's personal
details
as to work experience, education, qualifications and so on including,
of course, the disabilities which he suffered as a result of
the accident.
With that information he expressed the view that the respondent's prospects of
obtaining employment as a labourer or
plant operator would be minimal. As to
sedentary employment, he said that the demands of employers require skills
from past experience
and that there is a great reluctance to re-train people.
In addition, disabilities of a prospective employee are viewed adversely.
Prospective employers are concerned about performance and whether the disabled
person is likely to be absent on sick leave. Furthermore,
prospective
employers have a further reluctance to employ people who have been involved in
workers compensation claims. All those
things are barriers to re-employment of
a disabled person. Looking at the respondent's prospects of obtaining
employment generally,
with his knowledge of his background, experience,
skills, and disability, Mr Smith said that in his assessment he would have
very
minimal employment prospects. In cross-examination he agreed that the
respondent had successfully undergone his work trial with the
motor vehicle
auctioneer, and the reason he did not obtain work after that was that there
was no work available.
25. As the respondent's
contact with the service had ceased in March 1990,
the evidence being given in the proceedings in April 1991, Mr Smith conceded
that
his opinion as to the respondent's employability was based upon his
speculating as to what he considered to be the case in March
1990. He appeared
to agree that the tight labour market was a factor in the respondent's
difficulties in obtaining employment, but
added that his experiences with
disabled people over a period of years showed that they have difficulties in
obtaining employment
regardless of that factor. He said that the minimum wage
payable in Western Australia was around $230 - $240 per week and the average
unskilled or semi skilled wage was around $300 - $330 per week. He accepted
that if the respondent had obtained employment following
the work experience
with the car auction yard he would have been paid in excess of $200 per week.
Mr Smith agreed that the respondent
could do work as a storeman, a base grade
clerk at a motor vehicle registry and as a person selling maps in a lands
department. He
agreed that the respondent could physically do those jobs, but
with his knowledge of the labour market it would be extremely difficult
to
obtain such a position. He regarded physical disability as the major factor
affecting a person's prospects of obtaining work,
in comparison with the other
factors which had been mentioned.
26. In the appellant's case before the learned magistrate, Mr Strippling,
the
assistant personnel manager of the Department of Transport and Works in the
Northern Territory, said that there was no minimum
educational requirement for
employment of a person as a base grade clerk and that the weekly wage for such
a position was $347 per
week. He described a job as a base grade clerk in the
motor vehicle registry, by way of example, as involving a wide range of duties
such as being able to drive a motor vehicle, walk from place to place within
an office, open and close filing cabinets, filing documents,
answering
telephone enquiries and using computer systems. Walking may involve going up
and down stairs. Although vacancies became
available from time to time, he
spoke of the then current policy of filling positions from within the Public
Service. However, the
Department was an equal opportunity employer.
27. In cross-examination, he said that although there was no minimum
educational requirement,
educational qualifications of an applicant for a job
is one of the criteria to be considered. An applicant's physical health was
another. The appellant also called evidence from a Mr Major, a person with
appropriate qualifications in the motor vehicle sales
industry. He spoke of
the general attributes which would be desirable in a person engaged to sell
motor cars. There were no particular
physical activities of any significance
required of such a person, although they might be required to drive cars
around the yard
once a week. There were not many vacancies in new car
dealerships with people on a waiting list to obtain the opportunity to work
there, although vacancies occur in the used car sales business fairly
regularly. Car salesmen are paid an award of $363 a week plus
a commission.
28. A person who had a bad hip causing an unusual walking style would not be
disadvantaged in such a job because of
that factor. Good personal presentation
and confident representation of the manufacturer's product were more important
than anything
else. He agreed that in the new car sales area there was
competition for available positions, but that there were always opportunities
in the used car sales field although still competitive.
29. The appellant called no evidence going to the respondent's physical
incapacity for work nor as to the loss of the efficient use of a part of his
body in and for the purposes of his employment at the
time of the injury.
There was evidence that the respondent was being paid $400 per week by the
appellant at the time of the accident.
WORKERS' COMPENSATION COURT - REASONS AND FINDINGS
30. The learned magistrate, in her reasons, set out the evidence given in the
case in far greater detail than appears above and it is not suggested that she
erred in any respect in that regard. When considering
the question of whether
the respondent had suffered serious and permanent disablement, her Worship
expressly said that she accepted
the evidence given by the respondent and Mr
Griffiths as to the injuries suffered in the accident. Further, she accepted
the evidence
of Mr Griffiths: "That as regards Mr Clair's left leg he is 100
per cent disabled for any labouring work or plant operating or sitting
or
driving for long distances." She was thus satisfied that the respondent had a
serious and permanent disability, relevant to the
liability issue, but there
is no reason why her findings in that regard could not also be applicable to
issues relating to quantum.
31. The learned magistrate then turned to the question of "lump sum
disability." It is plain that she was then alluding to the claim
pursuant to
s10, although she did not always employ all of the words comprising the
statutory basis of entitlement. She accepted
Mr Griffiths' evidence that Mr
Clair had a ten percent disability of his left forearm in and for the purpose
of his employment at
the date of the injury. As to the disability in the left
leg, and noting that the respondent's work involved long periods of driving,
teaching the operation of plant and equipment and fixing and maintaining it,
she said she accepted the evidence of the doctor, supported
by the evidence of
the respondent that "his left leg is 100 per cent disabled in and for the
purpose of his employment." She then
moved on to say that she accepted the
evidence of the doctor that the respondent had a five percent disability of
his right leg in
and for the purpose of his employment. Concluding the
question of physical disability, the learned magistrate said: "Any future hip
replacement will relieve pain but will not, on the evidence before me, affect
the efficient use of his left forearm, his left leg
or his right leg in and
for the purpose of his employment at the time of the injury. I accept that he
cannot return to that form
of employment."
32. On the question of redemption, the learned magistrate said that she was
not satisfied that the respondent was
permanently and totally disabled, but he
would have the capacity to do a range of jobs, including work that involved
limited clerical
skills, work in a car sales yard, counter clerk in a
government department, a taxi driver and a range of employment that does not
involve heavy labouring work, prolonged standing, sitting, bending or lifting.
She found that he had a partial and permanent incapacity
which she assessed at
sixty percent.
33. Nowhere in an otherwise detailed review of the evidence or in her
findings does her Worship
expressly address the question of the employer's
liability to make weekly payments under s7. Nevertheless, an award was made by
her
for weekly payments for the first 26 weeks after the date of the accident
at the rate of $400 per week and thereafter to 2 August
1991, date of delivery
of judgment, at the rate of $197 per week, the statutory maximum, if the
respondent had been totally incapacitated
for work by the injuries to the date
of judgment. Awards were also made reflecting the employer's liability under
the heading of
"Lump Sum Disability" relating to left forearm, left leg and
right leg. Her Worship made an order that the respondent was entitled
to
redemption of the future liability for weekly payments based upon her finding
that he was sixty percent permanently and partially
disabled leaving the
quantum to be the subject of later submission.
APPEAL TO THE SUPREME COURT
34. The relevant grounds of appeal
to the Supreme Court were:
"4. The Court erred in
(a) failing to have regard to the evidence that the
respondent could earn
more than $197 doing the work which
the Court held he could do;
(b) failing to have regard to the evidence that there was