His Honour Deputy President Judge F.K. Cawthorne

Appeal against allowance of overtime in calculation of worker's average weekly earnings - Whether grounds of appeal raise question of law - No error of law established - Appeal dismissed - S.4(8) Workers Rehabilitation and Compensation Act, 1986.

Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 C.L.R. 321.

Warrior v. WorkCover Corporation Full Supreme Court of South Australia, 2 October 1998, judgment number S.6893.

Azzopardi v. Tasman UEB Industries (1985) 4 N.S.W.L.R. 139.

Hall v. Yellow Cabs of Australia Ltd. (1970) 92 W.N. (N.S.W.) 426.

Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 C.L.R. 547.

Commonwealth v. Oliver [1962] HCA 38; (1962) 107 C.L.R. 353.

Pizzorno v. Workers Rehabilitation and Compensation Corporation and Another [1997] SASC 6229; (1997) 69 S.A.S.R. 211.

Hahnheuser v. Workers Rehabilitation and Compensation Corporation (The Adelaide Casino) Full Supreme Court of South Australia, 10 September 1996, judgment no. S.5799.

Williams v. Bill Williams Pty. Ltd. (1971) 1 N.S.W.L.R. 547.

WorkCover Corporation (Plas-Tec Pty. Ltd.) v. Grigor Full Supreme Court of South Australia, 30 March 1994, judgment no. S.4450.

Phillis v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (O'Brien Glass Industries Ltd.) J.D.64/1999.

Wiechmann v. Lovering/WorkCover Corporation (1992) 59 S.A.S.R. 203.

Cristea v. Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 S.A.S.R. 487.

Hagean v. WorkCover Corporation (Hallett Brick Transport Pty. Ltd.) A.42/1997.

This is an appeal by the WorkCover Corporation from a decision of a Deputy President that overtime worked by the respondent worker satisfied the relevant criteria in Section 4(8) of the Act to be included in the calculation of his average weekly earnings.

The appellant contends that on the established facts, which were not in contention, the learned Deputy President erred in law in finding that the pattern of overtime worked by the worker was substantially uniform as to the number of hours worked (as required by Section 4(8)(a)(ii)), erred in law in finding that the worker would have continued to work overtime in accordance with the established pattern if he had not been disabled (as required by Section 4(8)(a)(iii)), and erred in law in regarding the only issue before him as being the setting of the respondent's average weekly earnings and in not therefore taking into account the fact that within about seven weeks changes to the pattern of overtime had occurred that would have enabled the appellant to invoke Section 36(2)(bb).

Pursuant to Section 86(1) of the Act, an appeal to the Full Tribunal lies only on a question of law. There arises at the outset an issue as to whether the grounds of appeal raised by the appellant involve questions of law.

Errors may be made by a Deputy President hearing a matter at first instance in any one of three ways, viz. in determining the facts by way of primary findings and inferences, in stating or directing himself as to the law or in applying the law to the facts found. The determination of facts will generally never be vulnerable to attack as an error of law. We say generally because there is authority for the proposition that a finding of fact crucial to the decision in the absence of any evidence of that fact involves an error of law: Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 C.L.R. 321; Warrior v. WorkCover Corporation Full Supreme Court of South Australia, 2 October 1998, judgment number S.6893 per Lander J.; Azzopardi v. Tasman UEB Industries (1985) 4 N.S.W.L.R. 139 per Kirby P. at 151. Here, the learned Deputy President's findings of fact are not disputed.

An error made by a trial judge in stating or directing himself as to the applicable law will by definition be an error of law. Again, there is here no challenge to the learned Deputy President's directing himself as to the applicable law.

At the third stage, the application of the correctly stated law to the facts found can produce a conclusion error. It is the appellant's case that this has happened here.

Mr. Hanus submitted that whether the established facts fall within or fail to satisfy a statutory test is always a question of law. However, this is not an unerring proposition and the case authorities cited by Mr. Hanus do not establish it as such. Indeed, the authorities suggest that an erroneous conclusion that established facts do or do not satisfy a statutory test, such as whether injury arises out of or in the course of employment (as in Hall v. Yellow Cabs of Australia Ltd. (1970) 92 W.N.N.S.W. 426; Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 C.L.R. 547; Commonwealth v. Oliver [1962] HCA 38; (1962) 107 C.L.R. 353), or whether overtime would have continued to be worked for a sufficient period for one to say that that fulfilled the requirement of Section 4(8)(a)(iii) of the Workers Rehabilitation and Compensation Act 1986 (as in Pizzorno v. Workers Rehabilitation and Compensation Corporation and Another [1997] SASC 6229; (1997) 69 S.A.S.R. 211) or whether administrative action taken by an employer was taken in a reasonable manner within Section 30(2a)(b)(iii) of the Workers Rehabilitation and Compensation Act, 1986 (as in Hahnheuser v. Workers Rehabilitation and Compensation Corporation (The Adelaide Casino) Full Supreme Court of South Australia, 10 September 1996, judgment no. S.5799) will ordinarily be an erroneous conclusion of fact and not an error of law.

In Williams v. Bill Williams Pty. Ltd. (1971) 1 N.S.W.L.R. 547, a case involving the determination of whether a worker's injury occurred in the course of his employment, Mason J.A. said at p.557:-

'It has been said that the question whether established facts, that is, facts found or admitted, fall within the words of the statutory provision is a question of law. If this statement is to be regarded as an expression of legal principle it must be understood as relating to circumstances in which all the material facts are fully established. In Farmer v. Cotton's Trustees (31), Lord Parker of Waddington said: "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." See also Commissioner of Taxation v. Miller (32); Hayes v. Federal Commissioner of Taxation (33).

Accordingly, where a tribunal at first instance fully and comprehensively states all the facts requisite for the decision, and poses for decision the question whether those facts fall within the meaning of a statutory provision, that question may, in general, be regarded as a question of law. But it sometimes happens that a tribunal at first instance states a number of facts, without making findings on all the issues of fact relevant to the final decision in the case. The decision may then depend on an unexpressed finding of fact, with the consequence that where an appeal lies from the decision on a question of law only, it is not possible to conclude that the error asserted by the appellant is one of law.

So also it may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.

The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact (N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (34); Australian Iron and Steel Pty. Ltd. v. Luna (35); Hall v. Yellow Cabs of Australia Ltd. (36)).'

Mason J.A. found that the case stated there did present a question of law, but this was because, in his view, the facts necessarily fell within the statutory expression contrary to the conclusion reached by the Workers Compensation Commission. The High Court of Australia reversed the Court of Appeal's decision, holding that the Commission had not erred in law, but Mason J.A.'s summation of the law was approved. McTiernan J. said [1972] HCA 23; (1972 46 A.L.J.R. 285 at 286):-

'Even if I thought it was unreasonable, having regard to the material before the Commission, to find that the applicant's flight [from an irate assailant] was not an incident of his employment, I could not give effect to that view by deciding in the applicant's favour, because it is not a question of law whether or not the decision of the Commission was unreasonable. The Commission is the tribunal of fact and this Court, like the Court of Appeal, is by Section 37(4) of the Act limited to questions of law: Clarke v. Flanagan [1934] HCA 73; (1934) 52 C.L.R. 416.'

Walsh J. noted that the question was not whether the learned judge ought to have decided the case in the respondent's favour but whether he was bound in law to do so. He continued (at 288):-

'It is not enough for the respondent to assert that it would have been open to the learned judge to find that the respondent was doing at the time of his injury something that was incidental to his employment and that, therefore, he was in the course of employment at that time. He must establish that the circumstances, as they were found by the judge, were such that as a necessary legal consequence the respondent must be held to have been then engaged in the course of his employment.

The principles just stated were recognised by the Court of Appeal. Mason J.A. referred to the principle that "if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact". A fairly recent example of the application of that principle in a case where the question was, as here, whether or not a worker was at the time of his injury in the course of employment is furnished by the case of Hall v. Yellow Cabs of Australia Ltd. (1970), 92 W.N. (N.S.W.) 426. Mason J.A. said, also, that "the facts of the present case necessarily fall within the statutory expression", that is to say, the expression "course of employment". The question to be considered is whether the principles thus recognised were correctly applied to the facts found by the primary judge.

In some cases it is a difficult task to determine whether different conclusions or but one conclusion are or is reasonably open. It is easy, in endeavouring to make a decision on that question, to slip across the boundary which must be maintained between the evaluation of the legal consequences of facts already found and the making of findings of fact. In this case our attention must be confined to the facts which the learned judge stated as having been found by him. On a consideration of those facts, I have reached the conclusion that it was not a case in which his decision should have been held to have been erroneous in law.'

In WorkCover Corporation (Plas-Tec Pty. Ltd.) v. Grigor Full Supreme Court of South Australia, 30 March 1994, judgment no. S.4450 the Full Supreme Court of South Australia was concerned with the interpretation of Section 35(2) of the Act and the effect of the worker's resignation/breach of mutuality. In words echoing those of Mason J.A. in Williams case, King C.J. said (at p.6):-

'The Tribunal has correctly stated the law and Mr. Quick has not contended otherwise.

This appeal on a question of law can only succeed, therefore, if the facts as found lead inevitably to the conclusion that mutuality did not exist at the time of the application to the Corporation, with a consequence that the Tribunal must have misapprehended the law despite its correct articulation of it or must have misapplied the law. If it is a question of evaluation or degree, there has been no error of law. The existence of mutuality when the legal concept is correctly apprehended, is a question of fact; Kelvinator v. Jezior (supra) per Cox J. at p.598. So far from the facts in the present case leading inevitably to the conclusion that the required mutuality did not exist, they are incapable, in my opinion, of leading to that conclusion.'

It is then in this case insufficient for the appellant to show that application of the established facts to the relevant statutory provisions, specifically Section 4(8)(a)(ii) and (iii), could lead to a different conclusion than that reached by the learned Deputy President, for that would not show that the learned Deputy President's conclusion was erroneous in law. What the appellant must do to succeed here is show that the established facts lead inevitably to the conclusions contended for, namely, that one or other of the criteria set out in Section 4(8)(ii) and (iii) were not satisfied. Short of that, an error of law has not been shown. To use the words of King C.J. in Grigor's Case, if it is a question of evaluation or degree, there has been no error of law.

Mr. Hanus submitted that the learned Deputy President erred in law in focusing on the few weeks immediately preceding the commencement of the worker's incapacity when a broader look at the 52 weeks preceding then disclosed no substantially uniform pattern. He submitted that to do this was tantamount to artificially manufacturing a substantially uniform pattern, something that the Full Tribunal in Peter Andrew Phillis v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (O'Brien Glass Industries Ltd.) J.D.64/1999 had held not to be permissible.

However, as noted by the learned Deputy President in his decision, Section 4(2)(b)'s authorisation of the consideration of 'the actual weekly earnings of the worker over a period of up to 12 months before the relevant date' is not a mandatory process and does not necessarily require a consideration of the full period of 12 months. The circumstances of each case will be different and in some instances it might be appropriate, even necessary, to have regard to only a relatively short period.

It is apparent from the learned Deputy President's reasons that the evidence of the appellant's manager, Mr. Des Collins, influenced his approach and findings. This evidence was to the effect that two major projects, the Magistrate's Court project and the Woolworths' Distribution project, had led to increased overtime in the latter part of 1996 and would likely have continued to do so at least through January 1997. Thus the learned Deputy President found 'the statement of Mr. Collins to which I have earlier referred reveals a change in the pattern of overtime evolving towards the end of 1996. That change is revealed in the schedule that is set out earlier in these reasons' (p.6).

The learned Deputy President appropriately referred to Section 4(1) and the requirement thereunder to assess 'the average amount that the worker could reasonably be expected to have earned for a week's work if he had not been disabled'. Implicit in his reference was the reminder that under the present Act the concept of average weekly earnings is directed to the future and not to the past. That said, he concluded (p.6):-

'All of this leads me to conclude that the starting point in determining the impact of overtime upon an assessment of average weekly earnings, is a consideration of the position immediately prior to the commencement of the period of incapacity for work. If no pattern of overtime emerges, it might be necessary and it is permissible to look further, and in doing so, one can go back as far as 12 months; Section 4(2)(b)(i).

But, it seems to me, that if a pattern which satisfies the relevant criteria emerges upon examination of the period immediately prior to the commencement of the incapacity, one should not look any further. If subsequent events reveal that that pattern has changed, the compensating authority has its remedies (see Section 36(2)(b) and Pizzorno (supra at p.216)).'

We are not persuaded that the learned Deputy President erred in his approach or in applying the established law to the facts found in this matter. Here the undisputed evidence indicated the likely continuation of overtime much as it had been worked in the weeks immediately preceding the worker's injury. Moreover, as noted previously, it is insufficient for the appellant to show that a different conclusion was possible on the facts found. It is sufficient, for the purposes of dismissing this ground of appeal, to observe that the established facts do not necessarily or inevitably require a different conclusion from that reached by the learned Deputy President.

Mr. Hanus next contended that the learned Deputy President had erred in law in finding that the worker would have continued to work overtime in accordance with the established pattern if he had not been disabled, thus satisfying the criteria in Section 4(8)(a)(iii). Doyle C.J. in Pizzorno's Case (supra) had specifically held that such a finding was a question of fact:-

'In my opinion, what Section 4(8)(a)(iii) requires is that the worker show that the worker would have continued to work overtime in accordance with the established pattern. Although no time is specified as the time for which overtime would have continued, in my opinion the words used do not import the notion of the indefinite continuation of the pattern. What they require is that the overtime would have continued to be worked for a sufficient period of time for one to say that that amounts to continued working of the overtime in accordance with the established pattern. That is a question of fact.

I appreciate that there is an element of imprecision in this. It is not possible to identify a period of time such that, if the established pattern of working continued, it can be said in advance that in all cases the requirement of the Section is met. Each case will turn upon its own facts. But all that has to be established is that the worker would have continued to work overtime, and would have done so for a sufficient period of time for one to conclude that the established pattern would have continued. I would not think that continuance for a day or, even a week, would suffice. But on the other hand, I reject the suggestion that the section requires a finding that the pattern has continued without interruption and will continue indefinitely.'

It cannot be maintained that the facts found by the learned Deputy President required as a matter of law a conclusion that the worker would not have continued to work overtime in accordance with the established pattern. Indeed, far from the facts leading inevitably to this conclusion, they are in our respectful view incapable of leading to this conclusion. The evidence of Collins was to the effect that the worker would likely have continued to work overtime on the two major projects until at least late January or February 1997 and the learned Deputy President relied on this. Thus it was Mr. Hanus' ultimate submission that a seven week continuation of overtime in a substantially uniform pattern could not as a matter of law be sufficient. We reject this. At best for the appellant one could say that it is a question of evaluation and degree, but this is insufficient to establish an error of law.

Mr. Hanus' third contention was that the learned Deputy President erred in law in regarding the only issue before him as being the setting of the respondent's average weekly earnings and in not therefore taking into account the fact that by late January/early February 1997 changes to the pattern of overtime had occurred that would have enabled the appellant to invoke Section 36(2)(bb). Thus, it was said that if overtime was to be included at all it should have been included in the calculation of average weekly earnings only for a closed period from 13 December 1996, a period of approximately seven weeks.

Mr. Hanus acknowledged that to do this would involve the Tribunal making a multiple assessment, something that the Full Supreme Court in Pizzorno's Case (supra) had held was not permissible. Mr. Hanus sought to distinguish Pizzorno's Case on the basis that that was a decision based on the former dispute resolution system (wherein Review Officers were entitled to make only one determination) and ought not be applied to the current scheme. The current scheme was different, he submitted, in that whereas a dispute was conciliated and arbitrated, Section 94 spoke of the judicial determination of a 'disputed claim' which was a broader concept and involved, in this instance, not just the quantification of the worker's average weekly earnings but also the determination of the extent and duration of his entitlement to overtime. There is, however, nothing in the wording of Section 94 or any other provision of the Act to warrant any distinction being drawn between the nature and scope of a dispute at different stages of dispute resolution. A dispute is founded in the determination and notice of dispute, and is the same dispute that is conciliated, arbitrated and, if necessary, judicially determined under the Act. It would be odd if the scheme of dispute resolution established by the Act required reconsideration, conciliation and arbitration as necessary precursory steps to judicial determination on one issue but not on another. In any event, Section 94C makes it clear that at judicial determination the Tribunal must 're-hear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings', and Section 94C(2)(b) stipulates that the Tribunal will not take evidence at judicial determination that should have been introduced in the arbitration proceedings unless there is adequate reason why the evidence was not introduced in the earlier proceedings or the interests of justice require the admission of the evidence. These provisions make it abundantly clear that the dispute that is re-heard and decided at judicial determination is the same dispute as that dealt with at arbitration. Section 92D also makes it clear that it is one and the same dispute that is referred from conciliation to arbitration or judicial determination.

Mr. Hanus next submitted that there was some tension between the earlier decision of Wiechmann v. Lovering (1992) 59 S.A.S.R. 203 (cited by Doyle C.J. in Pizzorno's Case for the proposition that a Review Officer was entitled to make only one decision) and the later decision of Cristea v. Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 S.A.S.R. 487. He submitted that if the Court's approach in Cristea was adopted here, the judicial determination of the worker's claim should have encompassed not only the question of whether overtime should have been included in the calculation of his average weekly earnings but also the quantification and period of that entitlement. We disagree. In Cristea's Case the Corporation had rejected a worker's claim for compensation. On review a Review Officer set aside the Corporation's decision on the ground that the worker had sustained a secondary disability to which his employment had contributed. In addition, the Review Officer determined that income maintenance be paid for a limited period only, being the period of his incapacity resulting from the secondary disability. The worker appealed the Review Officer's decision asserting, inter alia, that he should have confined himself to a consideration of the decision under review, namely, whether there was an injury arising out of or in the course of employment. On appeal, the Tribunal stated a case to the Full Supreme Court, asking the following question of law:-

'Was the Review Officer entitled to consider whether the worker was incapacitated and, if so, the period of incapacity, or was the Review Officer, by reason of Section 96(1), restricted to a consideration of the topic whether the disability arose out of or in the course of employment, and therefore, pursuant to Section 30(2)(a), compensable.'

The Full Supreme Court unanimously held that in reviewing the Corporation's decision and in making a fresh determination, the Review Officer was entitled to determine the worker's entitlement to income maintenance and in so doing to consider whether the claimed disability had resulted in incapacity for work and if it had the period of that incapacity. The Court did not see its decision as conflicting with Wiechmann v. Lovering. King C.J. said (at p.489):-

'The Review Officer must therefore consider the material before the Corporation as well as evidence given before him and must have regard to matters and events occurring after the Corporation's determination. The Review Officer's jurisdiction is limited, however, to a review of the decision of the Corporation (s 96(1)) and his determination must be restricted to "the matters to which the decision subject to review relates" (s 96(2)). The Review Officer is therefore precluded from making a determination as to matters which were not the subject of the determination of the Corporation: Weichmann v. Lovering (1992) 59 S.A.S.R. 203. He is required, however, to make a fresh determination, that is to say the determination of the matters to which the decision of the Corporation relates, which the Corporation ought to have made having regard to all the information before the Review Officer including information as to matters and events occurring after the determination. The jurisdiction of the Review Officer therefore extends to the making of any determination which can fairly be said to be within the scope of the matters to which the Corporation's decision relates.'

Applying that reasoning to the case at hand, it is necessary to identify the scope of the matters to which the Corporation's decision of 16 January 1997 related. Clearly, the Corporation's determination did not in any way purport to canvas the period of the worker's incapacity and entitlement to weekly payments, but rather was concerned only to accept the claim and fix the rate of weekly payments determined at the commencement of the period of incapacity.

Mr. Hanus next took us to the Tribunal's decision of Robert John Hagean v. WorkCover Corporation (Hallett Brick Transport Pty. Ltd.) A.42/1997 and submitted that application of the reasoning in that case to the case at hand necessarily required that the learned Deputy President reflect in his determination his finding of fact that within a matter of months changes to the pattern of overtime occurred that would have enabled the Corporation to invoke Section 36(2)(bb) of the Act. However, Hagean's Case is no more than an application of Cristea and Mr. Hanus' argument fails for the same reason as did his previous argument, because the duration of the worker's incapacity and entitlement to weekly payments was not a matter dealt with by the Corporation's determination.

In both Cristea's Case and Hagean's Case the Tribunal regarded itself as duty bound to make any determination which could fairly be said to be within the scope of the matters to which the Corporation's decision related. In each case the determinations involved the rejection of claims, and in each case the determinations were set aside by the Tribunal which was then obliged to determine the scope of the matters to which the Corporation's decisions had related.

We are of the view that the learned Deputy President was right in determining that Pizzorno's Case cannot be distinguished and that the only issue in dispute before him concerned the setting of the respondent's average weekly earnings at the time of the commencement of his incapacity.